THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


#U*^ 

<?&*- 


SELECTED  CASES 


ON 


WATER  EIGHTS 


AND 


IRRIGATION  LAW 


IN 


CALIFOENIA  AND  WESTEEN  STATES. 


BY 

GAVIN  W.  CRAIG,  LL.M., 

Professor  of  Water  Rights,  Irrigation  Law,  and  Real  Property, 
University  of  Southern  California,  College  of  Law. 


SAN  FRANCISCO: 

BANCROFT-WHITNEY  COMPANY, 

Law  Publishers  and  Law  Booksellers, 

1910. 


Copyright   1910, 

BY 
BANCROFT-WHITNEY  COMPANY. 

r 


SAN  FEANCISCO: 

THI  FILMEE  BROTHERS  ELECTROTYPE  COMPANY, 
TYPOGRAPHERS  AND  STEREOTYPERS. 


PREFACE. 


The  purpose  in  selecting  these  cases  has  been  to  furnish  as 
complete  a  study  as  possible  of  the  Law  of  Water  Rights. 
Because  of  lack  of  space  where  the  California  and  Colorado 
doctrines  conflict  upon  any  principle,  no  attempt  has  been 
madie  to  use  cases  establishing  the  Colorado  doctrine. 

In  arranging  the  cases  it  has  been  the  aim  to  place  them 
in  such  order  as  to  follow  the  growth  and  development  of 
one  principle  from  another.  Such  an  arrangement  should 
aid  the  student  to  more  readily  understand  the  underlying 
reasons  and  sound  logic  upon  which  this  branch  of  our  juris- 
prudence has  been  built. 

The  chief  .advantage  of  the  study  of  law  by  cases  is  that  the 
studlent  is  trained  by  this  method  better  than  by  any  other 
to  extract  from  the  cases  the  principles  of  law  upon  which 
the  decision  is  based.  Therefore,  the  statements  of  reporters, 
.and  points,  authorities  and  arguments  of  counsel,  have  been 
left  out. 

For  the  sake  of  brevity  and  a  clearer  understanding  of  the 
law,  parts  of  decisions  dealing  with  other  questions  than 
those  having  to  do  with  Water  Rights  have  also  been  omitted. 

As  the  cases  selected  are  intended  to  be  used  by  those  de- 
siring a  knowledge  of  the  Law  of  Water  Rights  as  it  exists 
in  the  Pacific  and  some  of  the  semi-arid  states  of  the  west,  the 
latest  decisions  of  the  courts  of  these  states  are  presented 
rather  than  English,  eastern  or  older  western  cases. 

GAVIN  W.  CRAIG. 

Los  Angeles,  Cal. 

(iii) 


667009 


TABLE  OF  CASES. 


Page 
Anaheim  Union  Water  Co.  et  al.  v.  Fuller  et  al.,  150  Cal.  327,  88 

Pae.  978  ...............................................     20 

Barclay  v.  Abraham,  121  Iowa,  619,  100  Am.  St.  Rep.  365,  96  N.  W. 

1080,  64  L.  B.  A.  255  ....................................  315 

Boehmer  v.  Big  Rock  Irrigation  District,  117  Cal.  19,  48  Pac.  908  .  .  28 

Bowman  et  al.  v.  Virdin,  40  Colo.  247,  90  Pac.  506  ................  173 

Burr  v.  Maclay  Rancho  etc.  Co.,  154  Cal.  428,  98  Pac.  260  .....  .....  306 

Cave  et  al.  v.  Tyler  et  al.,  133  Cal.  566,  65  Pac.  1089  ............  196 

Cole  et  al.  v.  Logan,  24  Or.  304,  33  Pac.  568  ....................  155 

Conrad  et  al.  v.  Arrowhead  Hot  Springs  etc.  Co.  et  al.,  103  Cal.  399, 

37  Pac.  386  .............................................  175 

De  Wolfskill  v  Smith  et  al.,  5  Cal.  App.  175,  89  Pac.  1001  ........  120 

Duckworth  et  al.  v.  Watsonville  etc.  Co.  et  al.,  150  Cal.  520,  89  Pac. 

338  ....................................................   211 

Ex  parte  Elam,  6  Cal.  App.  233,  91  Pae.  811  .....................  367 

Ferrea  v.  Knipe,  28  Cal.  341,  87  Am.  Dec.  128  ...................  1 

Fifield  v.  Spring  Valley  Water  Works,  130  Cal.  552,  62  Pae.  1054.  .  68 
Fisher  v.  Feige,  137  Cal.  39,  92  Am.  St.  Rep.  77,  69  Pac.  618,  59 

L.  R.  A.  333  .............................................  64 

Forbell  v.  City  of  New  York,  164  N.  Y.  522,  79  Am.  St.  Rep.  666, 

58  N.  E.  644,  51  L.  R.  A.  695  ..............................  241 

Gould  v.  Stafford,  91  Cal.  146,  27  Pae.  543  ......................     41 

Hanson  v.  McCue,  42  Cal.  303,  10  Am.  Rep.  299  .................  237 

Hargrave  et  al.  v.  Cook,  108  Cal.  72,  41  Pac.  18,  30  L.  R.  A.  390.  .  200 
Harris  et  al.  v.  Harrison  et  al.,  93  Cal.  676,  29  Pac.  325  ..........     11 

Heilbron  et  al.  v.  Fowler  etc.  Co.,  75  Cal.  426,  7  Am.  St.  Rep.  183, 

17  Pac.  535  ..............................................   232 

Hildreth  v.  Montecito  etc.  Co.,  139  Cal.  22,  72  Pac.  395  ............  361 

Hudson  et  al.  v.  Dailey  et  al.  (CaL,  Dec.  1,  1909,  L.  A.  No.  2234)  .  .  345 

Jones  et  al.  v.  Conn,  39  Or.  30,  87  Am.  St.  Rep.  634,  64  Pae.  855, 

54  L.  R.  A.  630  ...........................................     32 


vi  TABLE  OF  CASES. 


Page 
Katr  et  al.  v.  Walkinshaw,  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac. 

663,  74  Pac.  766,  64  L.  B.  A.  236 245 

Kendall  et  ux.  v.  Joyce  et  al.,  48  Wash.  489,  93  Pac.  1091 141 

Los  Angeles  T.  Pomeroy  et  al.,  124  Cal.  597,  57  Pac.  585 320 

Low  v.  Schaffer  et  al.,  24  Or.  239,  33  Pac.  678 135 

Lower  Tule  etc.  Co.  v.  Angiola  etc.  Co.,  149  Cal.  496,  86  Pac.  1081 . .  150 

Lux  et  al.  v.  Haggin  et  al.,  69  Cal.  255,  10  Pac.  674 71 

McClintock  v.  Hudson  et  al.,  141  Cal.  275,  74  Pac.  849 267 

McGuire  v.  Brown,  106  Cal.  660,  39  Pac.  1060,  30  L.  R.  A.  384 144 

Morton  v.  Oregon  etc.  By.  Co.,  48  Or.  444,  120  Am.  St.  Rep.  827,  87 

Pac.  151 49 

Newport  et  al.  v.  Temescal  Water  Co.,  149  Cal.  531,  87  Pae.  372,  6 

L.  R.  A.,  N.  S.,  1098 272 

Nielsen  et  al.  v.  Sponer,  46  Wash.  14,  123  Am.  St.  Rep.  910,  89 

Pac.  155 62 

Ortman  et  al.   v.  Dixon  et  al.,  13  Cal.  33 130 

Rogers  et  al.  v.  Overacker,  4  Cal.  App.  333,  87  Pac.  1107 4 

Sanguinetti  v.  Pock,  136  Cal.  466,  89  Am.  St.  Rep.  169,  69  Pac.  98. .  357 

Senior  et  al.  v.  Anderson  et  al.,  130  Cal.  290,  62  Pac.  563 205 

Shotwell  et  al.  v.  Dodge,  8  Wash.  337,  36  Pac  254 57 

Simmons  v.  Winters,  21  Or.  35,  28  Am.  St.  Rep.  727,  27  Pac.  7 223 

Smith  et  al.  v.  Hawkins,  110  Cal.  122,  42  Pac.  453 163 

Southern  California  IBV.  Co.  v.  Wilshire  et  al.,  144  Cal.  68,  77  Pac. 

767 15 

•  Tenney  v.  The  Miners'  Ditch  Co.,  7  Cal.  335 153 

Verdugo  etc.  et  al.  v.  Verdugo  et  al.,  152  Cal.  655,  93  Pac.  1021..  280 
Vernon  Irr.  Co.  v.  City  of  Los  Angeles  et  al.,  106  Cal.  237,  39  Pac. 

762 179 

Wells  v.  Mantes  et  al.,  99  Cal.  583,  34  Pac.  324 127 

Wood  et  aL  v.  Etiwanda  Water  Co.,  147  Cal.  228,  81  Pac.  512 167 


WATER  EIGHTS 


AND 


IRRIGATION  LAW 

CALIFORNIA  AND  WESTERN  STATES. 


Eights  of  Riparian  Owners — Reasonable  Use. 

NOCHOLA  FERREA  v.  MARK  KNIPE. 

(28  Cal.  341,  87  Am.  Dec.  128.) 
The  plaintiff  commenced  his  action  on  the  eighteenth  day  of 


June,  1864,.  alleging  that  for  eight  years  then  immediately 
'ecejdmg  he  had  been  in  the  possession  of  a  parcel  of  land 
consisting  of  twenty-five  acres,  through  which  runs  the 
Sulphur  Spring  creek  in  Solano  county,  which  he  had  used 
during  that  time  as  a  garden  for  raising  vegetables  for  market. 
That  in  May,  1856,  he  constructed  a  dam  upon  his  land  across 
the  creek,  and  since  then  had  appropriated  without  hindrance 
to  his  own  exclusive  use  for  irrigating  his  garden  all  the 
waters  of  the  stream;  and  he  claimed  that  by  reason  of  his 
long-continued  exclusive  use.  of  the  water  he  had  acquired  a 
right  by  prescription  to  the  use  thereof  to  the  extent  and  for 
the  purpose  of  its  original  appropriation,  and  then  had  the 
right  to  the  flow  of  the  entire  water  of  the  creek,  without 
obstruction,  into  the  reservoir  created  by  his  dam,  for  the 
benefit  of  his  land,  as  a  right  and  privilege  appurtenant 
thereto.  He  then  claims  that  in  1863  the  defendant  erected 
a  dam  across  the  stream  above  the  plaintiff's  dam  by  which  a 
part  of  the  water  was  prevented  from  running  down  the 
course  of  the  creek  to  the  plaintiff's  land.  That  in  April, 
1864,  the  defendant  constructed  ether  dams  across  the  same 
stream,  and  that,  by  reason  of  the  obstruction  and  diversion 

1  .(1). 


2  WATER  RIGHTS  AND  IRRIGATION  LAV/. 

of  the  water  by  these  dams  the  plaintiff  was  deprived  of  his 
accustomed  use  of  it,  to  the  great  injury  of  his  business  and 
to  his  grett  damage,  and  he  then  alleges  the  insolvency  of  the 
defendant,  and  also  that  if  the  wrongs  of  which  he  complains 
are  continued  his  business  and  trade  will  be  wholly  ruined. 

The  object  of  the  action  was,  first,  to  recover  damages  for 
the  injury  already  sustained;  second,  to  abate  the  defendant's 
dams;  and  third,  to  obtain  an  injunction  restraining  the  de- 
fendant from  obstructing,  diminishing,  or  diverting  the 
waters  of  the  creek  from  flowing  to  the  plaintiff's  dam.  .  .  . 

The  plaintiff  moved  for  a  new  trial.  The  motion  was  de- 
nied. From  this  decision  andi  the  judgment  the  plaintiff 
appealed, 

CURREY,  J.— In  1863,  as  appears  by  the  finding,  the  de- 
fendant erected  a  dam  across  the  creek  above  the  plaintiff's 
dam,  by  which  the  natural  flow  of  the  stream  was  obstructed. 
In  April,  1864,  he  erected  two  other  dams  across  the  same 
creek  above  the  plaintiff's  dam,  by  means  of  which  several 
dams  the  water  of  the  stream  was  entirely  obstructed  and  pre- 
vented from  flowing  to  the  dam  of  the  plaintiff,  whereby  the 
plaintiff  was  wholly  deprived  of  the  waters  of  the  stream,  and 
his  vegetables  and  fruit  growing  at  the  time  of  the  erection  and 
continuance  of  these  dams  were  injured,  to  his  damage  in  the 
sum  or  two  hundred  dollars.  It  further  appears  by  the  find- 
ing that  the  object  of  the  defendant  in  erecting  his  dams  was 
only  to  detain  sufficient  water  for  his  stock,  and  that  he  used 
the  same  for  no  other  purpose,  and  that  when  the  action  was 
brought  there  was  not  water  enough  in  the  creek  to  flow  to 
the  plaintiff's  reservoir  if  no  dams  had  been  erected  above  it. 

The  evidence  in  the  case  shows  that  the  last-named  year 
was  one  of  extreme  drought,  and  that  at  the  time  this  action 
was  commenced  the  water  of  the  creek  was  so  reduced  in 
quantity  at  the  place  where  the  defendant  had  erected  his 
dams  (which  were  more  than  a  mile  from  plaintiff's  land! 
as  to  be  insufficient  to  flow  over  such  dams.  Every  pro-"' 
prietor  of  lands  through  or  adjoining  which  a  watercourse 
passes  has  a  right  to  a  reasonable  use  of  the  water;  but  he 
has  no  right  to  so  appropriate  it  as  to  unnecessarily  diminish 

| 


FERREA  v.  KNIPE.  3 

thejjuantity  in  its  natural  flow.  The  use  of  the  water  of  a 
stream  for  domestic  purposes  and  for  watering  cattle  neces- 
sarily diminishes  the  volume  of  the  stream.  This  is  unavoid- 
able, and  though  by  reason  of  such  diminution  a  proprietor 
on  the  stream  below  fails  to  receive  a  supply  commensurate 
with  his  wants,  he  is  without  remedy,  because  his  right  sub- 
sists subject  to  the  rightful  use  of  the  wrater  by  his  neighbor 
on  the  stream  above  him.  But,  while  admitting  that  a  ripar- 
ian owner  to  whom  the  water  first  comes  in  its  flow  has  the 
right  to  use  it  for  domestic  purposes,  and  for  watering  cattle, 
it  is  proper  to  observe  that  he  has  not  the  right  to  so  obstruct 
the  stream  as  to  prevent  the  running  of  water  substantially 
as  in  a  state  oFnature  it  was  accustomed  to  run.  The  maxim 
of  the  law  which  he  is  bound  to  respect  while  availing  him- 
self of  his  right  is,  "Sic  utere  tuo  ut  alienum  non  laedas." 
(3  Kent,  440;  Angell  on  Watercourses,  sec.  195;  Tyler  v.  Wil- 
kinson, 4  Mason,  397,  Fed.  Gas.  No.  14,312.) 

The  court  found  that  by  reason  of  the  dams  erected  by  the 
defendant  "the  flow  of  the  stream  was  wholly  obstructed,  and 
the  waters  detained  were  prevented  from  flowing  to  the  darn 
of  the  plaintiff,  and  that  he  was  thereby  deprived  of  the  use 
of  the  same,  prior  to  the  commencement  of  this  suit,"  and 
"that  the  plaintiff  has  sustained  damages,  by  reason  of  said 
acts  of  defendant,  in  the  sum  of  two  hundred  dollars."  The 
court  also  found  that  the  defendant  was  insolvent  and  unable 
to  respond  to  any  judgment  that  might  be  recovered  against 
him.  The  court  further  found  that  the  defendant^  erected 
the  dams  "only  to  gather  sufficient  water  for  watering  his 
stock,  and  used  it  for  no  other  purpose,"  and  "that  at  the 
time  this  suit  was  commenced  there  was  not  water  enough 
to  flow  to  plaintiff's  pond,  had  no  dams  been  built." 

The  fact  that  the  water  was  so  reduced  in  quantity  at  the 
time  the  action  was  commenced  as  to  be  insufficient  to  flow  to 
the  plaintiff's  premises,  had  the  same  been  unobstructed,  was 
not  a  circumstance  decisive  of  the  case.  If  before  then  the 
creek  was  wholly  unobstructed  by  the  defendant,  and  the 
water  of  the  stream  was  prevented  by  him  from  flowing  to 
the  plaintiff's  land,  by  reason  whereof  he  was  deprived  of  the 
use  of  the  water,  and  thus  suffered  damages,  he  had  just  cause; 


4  WATER  EIGHTS  AND  IRRIGATION  LAW. 

of  complaint,  and  was  entitled)  to  relief  and  to  the  remedy 
which  he  sought  to  prevent  the  continuance  of  the  injury, 
though  the  defendant  had  the  right  to  use  the  stream  for 
watering  his  cattle  and  for  household  purposes,  he_Jiad  not 
the  right,  under  the  circumstances,  to  dam  up  the  creek  and 
spread  out  the  water  over  a  large  surface,  by  which  it  would 
become  lost  by  absorption  and  evaporation  to  an  extent  to 
prevent  the  stream  from  flowing  to  the  plaintiff's  premises, 
as  it  would  have  done  had  it  not  been  for  defendant's  dams. 
It  cannot  be  held  in  this  case  that  the  obstruction  and  diver- 
sion of  the  water  of  the  creek  was  necessary  to  the  proper 
and  beneficial  use  of  the  stream  by  the  defendant,  and  that 
as  a  consequence  the  injury  sustained  by  the  plaintiff  was 
damnum  absque  injuria.  The  facts  found  by  the  court  pre- 
clude such  a  conclusion.  From  the  facts  found  the  plaintiff 
was  entitled  to  judgment,  on  the  ground  that  he  had  the  right 
to  the  water  of  the  creek  in  the  natural  flow,  subject  only 
to  the  use  thereof  by  the  defendant  in  a  reasonable  manner, 
without  unnecessary  obstruction  or  diminution.  (Angell  on 
Watercourses,  c.  4,  and  the  authorities  therein  cited.) 

The  judgment  must  be  and  is  hereby  reversed,  and  the  cause 
remanded  to  the  court  below  with  directions  to  enter  judg- 
ment for  the  plaintiff. 


Use  by  a.  Lower  Owner  not  Adverse — Uncertain  Judgment. 

MRS.   T.   G.  ROGERS  et   al.,  Respondents,  v.  H.   OVER- 
ACKER,  Jr.,  Appellant. 

(4  Cal.  App.  333,  87  Pac.  1107.) 

BUCKLES,  J. — This  is  a  suit  in  equity  to  enjoin  the  de- 
fendant from  diverting  certain  waters  from  Conn  creek  in 
Napa  county.  After  a  trial  had  the  court  made  findings 
and  entered  judgment  therein  in  favor  of  the  plaintiffs.  The 
defendant  appeals  from  the  judgment  and  from  an  order 
denying  his  motion  for  a  new  trial. 

The^ti^Mntlalleges^hat  Conn  creek  has  its  source  in 
Howell  mountain  in  said  Napa  county,  and  runs  thence  in  a 


ROGERS  v.  OVER  ACKER,  JB.  5 

natural  defined  channel  in  a  southerly  direction  until  it  enters 
Napa  creek  near  the  town  of  Yountville  and  flows  along  over 
the  lands  of  both  plaintiffs  and  defendant  a  distance  of  about 
four  miles,  and  that  the  lands  of  defendant  are  nearer  the 
source  of  said  Conn  creek  and  higher  up  on  the  said  creek 
than  any  of  the  lands  of  plaintiffs.  That  the  lands  of  plain- 
tiffs and  defendant  have  always  been  used  by  themselves  and 
their  predecessors  in  interest  for  stock-raising,  grazing  and 
farming,  and  the  waters  of  said  creek  have  always  been  used 
by  them  for  domestic  use  other  than  irrigation,  until  about 
two  years  ago,  and  then  only  the  defendant  has  at  times 
diverted  and  claims  the  right  to  divert  all  of  the  water  of 
said  creek  so  as  to  flow  the  same  entirely  upon  his  own  lands 
solely  for  the  purpose  of  irrigation,  which  diversion  is  by 
means  of  dams  erected  in  said  creek,  and  flumes  and  ditches 
leading  the  water  out  and  upon  his  said  land,  and  has  thus 
deprived  plaintiffs  of  the  use  of  said  water  and  that  there  is 
now  no  water  running  in  the  channel  of  said  creek  on  or  by 
their  lands.  That  they  need  said  water  for  their  stock  and 
pasturage;  that  they  will  suffer  irreparable  loss  unless  de- 
fendant be  enjoined  from  using  said  water  for  irrigation. 
Tliat  ^lef  endaot.  has  no  right,  by  purchase,  prescription  or 
otherwise,  to  said  water  other  than  as  a  riparian  owner,  and 
no  right  to  deprive  plaintiffs  of  the  natural  flow  of  the  water 
of  said  creek  in  the  natural  channel  thereof. 

The  answer  alleges  that  defendant,  grantors  and  prede- 
cessors in^  interest  have  from  time  to  time  for  many  years 
diverted  the  waters  of  said  creek  for  purposes  of  irrigation  at 
a  greater  or  less  extent  than  the  same  have  been  used  by  him, 
and  that  he  used  the  ditches  made  and  used  by  the  grantors. 
Denies  that  defendant  at  any  time  diverted,  or  claimed  the 
right  to  divert,  all  the  waters  of  said  creek,  and  has  never  at 
any  time  diverted  more  than  one-half  of  said  waters,  and  that 
for  irrigation,  and  that  he  never  deprived  the  plaintiffs 
of  the  use  of  said  waters.  That  when  diverted  he  uses 
said  waters  for  irrigation  and  for  domestic  purposes.  De- 
nies that  plaintiffs  are  dependent  upon  the  waters  flowing 
in  the  channel  of  said  creek  for  watering  their  stock  and 
other  domestic  uses.  Denies  that  he  is  now  diverting,  or  ever 
has  diverted,  the  whole  of  said  water,  and  alleges  that  he  does 


6  WATER  RIGHTS  AND  IRRIGATION  LAW. 

and  has  diverted  only  a  reasonable  portion  thereof,  and  al- 
leges that  there  is  water  enough  flowing  in  the  channel  of  said 
creek  to  supply  all  the  riparian  owners  along  the  said  creek 
with  ample  water  for  domestic  use  and  their  stock  and  to 
irrigate  more  lands  than  have  ever  been  irrigated  by  the 
defendant.  Alleges  that  by  reason  of  the  failure  of  the  com- 
plaint to  show  that  the  waters  claimed  by  plaintiffs  are  to  be 
used  on  the  lands  riparian  to  said  creek,  and  by  reason  of  the 
failure  of  plaintiffs  to  allege  the  amount  of  stock  which  they 
claim  the  right  to  water  from  said  creek,  the  defendant  is 
unable  to  determine  the  actual  amount  of  water  claimed  by 
them.  Alleges  that  the  tract  of  land  planted  to  alfalfa  which 
he  diverts  the  water  to  irrigate  is  land  belonging  to  defendant 
and  riparian  to  said  creek  and  naturally  drained  into  said 
creek,  and  that  it  is  necessary  to  use  a  reasonable  amount  of 
said  water  to  keep  the  alfalfa  growing  on  his  said  land  so 
irrigated.  There  is  no  averment  in  either  complaint  or  answer 
of  the  amount  of  water  required  by  either  plaintiffs  or  de- 
fendant, nor  of  the  approximate  amount  of  water  flowing  in 
said  creek.  It  does  appear,  however,  that  from  about  July  15, 
1902  and  1903,  to  the  time  when  the  cool  weather  comes  the 
water  has  ceased  to  flow  upon  the  surface  of  the  channel  of 
said  creek  at  some  places  below  the  lands  of  defendant. 

The  court  finds  as  matter  of  fact  that  all  the  lands  described 
are  riparian  to  said  creek.  That  all  these  lands  have  always 
been  used  for  stock-raising,  grazing  and  farming,  and  the 
waters  of  said  Conn  creek  have  been  used  by  plaintiffs  for 
domestic  purposes  and  watering  stock  to  a  greater  or  less 
extent,  and  the  waters  of  said  creek  have  never  been  used  to 
any  appreciable  extent  for  irrigation  until  within  the  years 
1902-03.  That  plaintiffs  are  dependent  upon  the  water  of  said 
creek  during  the  dry  season  of  the  year  for  watering  their 
livestock:  That  in  July,  1902,  defendant  diverted  a  con- 
siderable portion  of  the  water  of  said  creek  out  of  the  channel 
to  and  upon  his  lands  through  a  flume  six  by  eight  inches, 
for  purposes  of  irrigation.  Did  this  again  in  1903.  That  for 
twenty  or  thirty  years  before  the  diversion  of  s>aid  water  by 
defendant  the  waters  of  said  creek  had  flowed  upon  the  lands 
of  plaintiffs,  so  that  during  the  dry  season  of  the  year  there 
was  abundance  of  fresh  water  in  said  creek  for  their  domestic 


ROGERS  v.  OVERACKER,  JR.  7 

purposes  andi  watering  their  stock,  and  that  by  reason  of 
diverting  said  waters  by  defendant  for  irrigating  purposes 
in  the  dry  season  of  1902-03  the  plaintiffs  were  deprived  of 
necessary  water  for  domestic  use  and  watering  their  stock. 

As  conclusions  of  law  the  court  found  as  follows,  to  wit: 
"The  right  of  plaintiffs  to  a  sufficient  flow  of  water  of  Conn 
creek,  in  the  county  of  Napa,  state  of  California,  in  the 
natural  channel  thereof  to  and  upon  the  riparian  lands  of 
plaintiffs  ...  all  seasons  of  the  year  sufficient  to  supply 
plaintiffs  with  fresh  water  for  their  natural  wants  and  usual 
dtomestic  purposes,  including  watering  of  livestock  kept  or 
maintained  by  plaintiffs  upon  their  said  riparian  lands  are 
primary  and  paramount  rights  to  the  right  of  defendant  to 
divert  or  use  any  of  the  waters  of  said  Conn  creek  for  the 
purposes  of  irrigation.  Plaintiffs  are  entitled  to  judgment 
enjoining  defendant  from  so  diverting  such  quantity  of  the 
waters  of  said  Conn  creek  for  the  purposes  of  irrigation  as 
will  prevent  said  creek  from  flowing  to  and  upon  the  riparian 
lands  of  plaintiffs  in  quantities  sufficient  to  supply  plaintiffs 
with  fresh  water  for  their  natural  wants  and  usual  domestic 
purposes,  including  the  watering  of  livestock  kept  or  main- 
tained by  them  on  their  said  riparian  lands." 

The  court  does  not  find  the  amount  of  water  each  riparian 
owner  is  entitled  to,  but  finds  the  defendant's  diversion  and 
use  of  said  waters  for  irrigation  purposes  (one-half  or  one- 
third)  as  shown  by  defendant's  answer  and  by  the  evidence 
is  not  reasonable,  and  if  continued  would  cause  plaintiffs 
irreparable  injury.  The  judgment  enjoins  defendant  from 
diverting  the  waters  of  Conn  creek  from  the  natural  channel 
thereof  upon  his  lands  for  the  purpose  of  irrigation  at  such 
times  or  in  such  quantities  or  amounts,  or  in  such  manner, 
as  will  prevent  such  waters  from  flowing  to  and  upon  the 
riparian  lands  of  plaintiffs  in  a  sufficient  quantity  to  supply 
plaintiffs  with  fresh  water  for  their  natural  wants  and  usual 
domestic  purposes,  including  the  watering  of  livestock  kept 
or  maintained  by  the  plaintiffs  on  their  said  riparian  lands. 

All  the  testimony  for  the  plaintiffs  showed  that  the  water 
ran  in  the  channel  of  Conn  creek  in  abundance  for  their  use 
for  domestic  purposes  and  for  watering  their  stock  for  all  the 
years  up  to  1902,  and  that  during  1902  and  1903  and  until 


8  WATER  EIGHTS  AND  IRRIGATION  LAW. 

the  suit  was  commenced  in  September,  1903,  the  water  ceased 
to  run  by  their  lands  about  July  and  August  of  those  years, 
and  was  not  sufficient  for  all  their  needs.  There  was  no  sub- 
stantial conflict  in  the  evidence  for  the  plaintiffs.  The  testi- 
mony for  the  defendant  showed  that  defendant  put  in  his  first 
dam  at  his  place  in  July,  1902,  and  during  1902  he  took  out 
about  one-thirdi  of  the  volume  of  the  water  flowing  in  the  said 
creek.  "When  cutting  the  alfalfa  the  water  in  the  flume  was 
allowed  to  run  onto  waste  land.  Irrigated  about  twelve  acres 
of  alfalfa.  His  flume  connected  with  an  old  ditch,  which  he 
cleared  out  and  which  he  testified  looked  like  it  had  twenty 
years'  growth  of  brush,  etc.  Never  used  the  water  much  on 
other  places  than  alfalfa,  but  let  it  run  on  one  place  below 
his  cellar  and  on  another  place  for  pasture.  He  testified: 
"During  July  and  August  the  amount  flowing  in  Conn  creek 
gradually  lessens,  but  there  is  a  large  flow  all  summer  and  as 
soon  as  the  days  begin  to  get  cooler  and  the  nights  get  longer 
the  water  in  the  creek  begins  to  rise."  This  testimony  ap- 
plies simply  to  conditions  existing  on  defendant's  land.  "All 
the  water  that  passes  my  dam  and  all  the  water  that  flows  or 
seeps  back  from  the  alfalfa  patch  flows  down  Conn  creek  into 
the  lands  of  plaintiffs.  .  .  .  This  irrigated  tract  ...  is  on 
the  northeast  side  of  Conn  creek  and  ...  is  riparian  to  the 
creek  .  .  .  without  irrigation  it  would  be  impossible  to  keep 
the  alfalfa  alive." 

Appellant  claims  error  because  the  court  did  not  find  on 
certain  issues  raised  by  his  answer.  There  is  no  specific  find- 
ing as  to  this  allegation  in  the  answer,  to  wit:  "That  it  is 
necessary  for  defendant  to  use  said  waters  on  said  land  in 
order  to  keep  the  alfalfa  growing  on  said!  irrigated  tract 
alive,  and  if  said  water  is  not  used)  to  a  reasonable  extent  upon 
said  lands,  great  and  irreparable  injury  will  result  to  this 
defendant  thereby." 

If  it  was  not  necessary  to  irrigate  the  land,  then  clearly 
defendant  had  no  right  to  divert  the  water  of  the  creek 
onto  it.  Audi  if  the  court's  view  that  the  lower  riparian 
owners  had  the  paramount  right  to  all  the  water  flowing  in 
saidi  creek,  then  this  allegation  of  the  answer  would  become 
an  immaterial  allegation  and  no  finding  would  be  necessary 
thereon.  (Louvall  v.  Gridley,  70  Cal.  511,  11  Pac.  777.) 


ROGERS  v.  OVERACKEB,  JR.  9 

There  was  no  testimony  of  a  prior  use  by  defendant  or  his 
predecessors  of  the  waters  of  said  creek  for  purposes  of  irriga- 
tion except  what  might  be  inferred  from  what  defendant  said 
about  running  the  water  he  diverted  into  a  ditch  which  had 
a  twenty-year  old  growth  of  brush  in  it,  and  we  think  it  can 
hardly  be  said  that  this  bit  of  testimony  furnished  any 
evidence  that  defendant's  predecessors  in  interest  had  ever 
diverted  these  waters  for  purposes  of  irrigation.  The  court 
foundi  as  follows:  "Before  the  diversion  of  water  of  said 
creek  by  defendant  for  a  period  of  twenty  or  thirty  years 
the  water  of  said  creek  had  always  flowed  to  and  upon  the 
lands  of  all  these  plaintiffs,  so  that  during  the  dry  season 
every  year  there  was  maintained  on  their  said  premises  abun- 
dant fresh  water  for  domestic  purposes,  including  the  watering 
of  their  stock." 

Then  in  its  conclusion  of  law  finds:  "The  rights  of  plain- 
tiffs to  a  sufficient  flow  of  water  of  Conn  creek  ...  in  the 
natural  channel  thereof  to  and  upon  the  riparian  lands  of 
plaintiffs  ...  in  a  sufficient  quantity  at  all  seasons  of  the 
year  sufficient  to  supply  plaintiffs  with  fresh  water  for  their 
natural  wants  and  usual  domestic  purposes,  including  the 
watering  of  livestock  kept  or  maintained  by  plaintiffs  upon 
their  said  riparian  lands  are  primary  and  paramount  rights 
to  the  right  of  defendant  to  divert  or  use  any  of  the  waters 
of  said  Conn  creek  for  the  purposes  of  irrigation." 

If  the  law  is  as  the  court  thus  finds,  then  no  matter  how 
it  may  have  found'  as  to  said  allegation  the  judgment  must 
have  been  for  plaintiffs.  But  we  do  not  so  understand  the 
law.  The  rule  seems  to  be  as  laid  down  in  Bathgate  v.  Ir- 
vine, 126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac.  442,  and  Har- 
grave  v.  Cook,  108  Cal.  72,  41  Pac.  18,  30  L.  R.  A.  390.  In 
the  first  case  it  was  said,  approving  the  latter  case,  that  a 
lower  riparian  proprietor  cannot  acquire  a  right,  either  by 
prior  appropriation  or  by  prescription  or  adverse  user,  as 
against  an  upper  riparian  proprietor  whose  rights  antedate 
the  appropriation  and  user,  and  the  mere  nonuser  of  the 
water  by  the  upper  proprietor  and  his  permitting  the  water  to 
pass  down  to  the  lands  of  the  lower  owner  cannot  make  the 
user  of  the  lower  owner  adverse  or  strengthen  his  claim  of 
appropriation  or  prescription.  The  complaint  alleges  no 


10  WATER  EIGHTS  AND  IRRIGATION  LAW. 

priority  of  user  of  said  waters  for  domestic  purposes  over  the 
defendant.  We  do  not  think  the  court  erred  in  failing  to 
make  a  finding  of  the  said  allegations. 

The  plaintiffs  were  entitled  to  a  judgment  restraining  the 
defendant  from  diverting  all  the  water  from  said  creek  fo? 
irrigating  his  said  land  riparian  to  said  creek. 

The  plaintiffs  having  an  equal  right  to  take  the  water,  and 
it  being  admitted  that  at  times  there  is  abundance  of  water 
flowing  in  the  creek  to  supply  their  wants  and  the  defendant 
for  irrigating  his  alfalfa,  and  plaintiffs  claim  that  at  times 
only  enough  for  the  use  of  plaintiffs,  it  becomes  necessary  to 
know  just  how  much  water  must  flow  down  said  creek  to  their 
lands,  for  they  are  entitled  to  just  so  much  and  the  defendant 
to  so  much.  A  judgment  which  enjoins  the  defendant  from 
diverting  such  waters  "for  the  purpose  of  irrigation,  at  such 
times  or  in  such  quantity  of  amount,  or  in  such  manner,  as 
will  prevent  the  wraters  of  said  Conn  creek  from  flowing  to  and 
upon  the  riparian  lands  of  plaintiff  described  in  the  amended 
complaint  in  this  action  in  a  sufficient  quantity  to  supply 
plaintiffs  with  fresh  water  for  their  natural  wants  and  usual 
domestic  purposes,  including  the  watering  of  livestock  kept  or 
maintained  by  plaintiffs  upon  their  said  respective  lands," 
is  not  a  judgment  that  informs  either  plaintiffs  or  defendant 
just  what  to  do.  It  must  be  observed  that  there  is  no  ad- 
judication whatever  as  to  the  amount  of  water  the  plaintiffs 
will  need,  no  mention  of  the  number  of  stock  to  be  watered, 
and  no  means  is  provided  in  the  judgment  by  which  the  de- 
fendant can  determine  just  how  much  water  he  must  let  flow 
down  the  creek  in  order  that  plaintiffs  may  have  their  proper 
and  necessary  amount  of  water.  The  judgment  is  fatally 
uncertain,  and  although  it  follows  the  findings,  it  gives  no 
information  as  to  the  quantity  of  water  which  is  due  to  plain- 
tiffs. In  Riverside  Water  Co.  v.  Sargent,  112  Cal.  230,  44 
Pac.  560,  which  was  an  action  to  determine  the  relative  rights 
of  plaintiffs  and  defendant  to  the  use  of  water  flowing  in 
the  Santa  Ana  river,  the  court  said:  "The  decisions  of  this 
court  establish  that  in  cases  like  the  present  the  findings  and 
judgment  must  fix  the  extent  of  the  superior  right,  viz.,  the 
quantity  of  water  to  be  allowed  to  the  party  whose  claim  is 
paramount;  otherwise  the  judgment  fails  to  attain  the  cer- 


HARRIS  v.  HARRISON.  11 

tainty  necessary  to  an  estoppel  upon  the  main  subject  of  the 
litigation."  .  .  . 

In  the  case  at  bar  the  judgment  can  never  be  legally  en- 
forced because  of  its  uncertainty  as  to  the  amount  of  water 
defendant  must  let  pass  to  the  riparian  lands  of  plaintiffs, 
and  it  could  not  be  plead  as  an  estoppel  (Code  Civ.  Proc., 
sec.  1908),  because  the  rights  of  neither  party  are  fully  deter- 
mined thereby. 

There  are  other  errors  complained  of,  mostly  in  relation 
to  the  findings,  but  as  the  judgment  must  be  reversed  and  a 
new  trial  had,  we  will  not  consider  them. 

The  judgment  and  order  are  reversed  and  the  case  sent  back 
for  a  new  trial,  and  it  is  suggested  that  the  pleadings  be  so 
amended  that  the  court  upon  a  new  trial  may  be  able  to  deter- 
mine specifically  the  relative  rights  of  the  parties. 


Use  for  Irrigation — Form  of  Relief. 

WILLIAM  P.  HARRIS   et  al.,  Respondents,  v.  A.  HARRI- 
SON et  al.,  Appellants. 
(93  Cal.  676,  29  Pac.  325.) 

McFARLAND,  'J. — This  action  was  brought  to  quiet  plain- 
tiffs' title  to  the  right  to  the  use  of  certain  water,  alleged  to 
flow  naturally  through  a  stream  called  Harrison  canyon. 
Judgment  was  rendered  for  plaintiffs,  and  defendants  appeal. 

Plaintiffs  and  defendants  are  the  owners  of  adjoining  land, 
defendants'  land  lying  on  Harrison  canyon  above  and  to  the 
north  of  the  land  of  plaintiffs.  The  real  merits  of  the  case — 
underlying  incidental  points  of  pleading  and  practice — rest 
upon  the  issue  whether  or  not  there  is  any  watercourse  in 
Harrison  canyon.  Defendants  undertook  to  maintain  by  their 
evidence  that  the  general  character  of  Harrison  canyon  was 
that  of  a  dry,  sand}'  gulch,  with  practically  no  running  water 
in  it,  except  during  great  and  unusual  rainstorms,  when 
temporary  torrents  bring  down  large  masses  of  sand  and 


12  WATER  RIGHTS  AND  IRRIGATION  LAW. 

debris,  which  fill  up  the  gulch,  and  so  change  it  that  it  could 
not  be  said  to  have  any  well-defined  bed  or  banks ;  that  ordin- 
arily there  was  no  water  in  the  canyon  except  a  little  that 
oozed  out  of  two  springs  on  defendants'  land,  in  quantities 
too  small  to  form  a  current  strong  enough  to  flow  down  to 
plaintiffs'  land;  and  that  defendants,  by  digging  into  said 
springs  and  removing  obstructions,  developed  a  small  stream, 
which  they  use  to  irrigate  their  land.  Plaintiffs  introduced 
evidence  tending  to  show  the  contrary  of  defendants'  con- 
tention, and  tending  to  prove  that  there  always  has  been,  and 
is,  a  natural  stream  of  water  running  down  said  canyon  to  and 
upon  plaintiffs'  land,  independent  of  said  unusual  storms. 
The  judge  of  the  court,  with  counsel  for  both  parties,  and  a 
civil  engineer  (Finkle),  visited  the  premises  and  observed  the 
various  points  alluded  to  in  the  testimony.  The  evidence  was 
certainly  very  conflicting;  and  without  reviewing  it  here  in 
detail,  it  is  sufficient  to  say  that  its  character  is  such  that 
the  finding  of  the  lower  court  that  there  was  a  watercourse  as 
claimed  by  plaintiffs  must  be  taken  as  final.  .  .  . 

3.  The  most  important  question  of  law  involved  in  the  case 
(although  not  much  argued  in  the  briefs)  arises  out  of  the 
form  of  the  judgment.  The  court  found  ' '  that  in  order  that 
the  water  of  said  stream  may  be  made  available  for  the  pur- 
poses of  irrigation  to  advantage,  it  is  necessary  that  the  full 
flow  of  the  stream  be  used  at  once";  and  it  was  decreed  in 
the  judgment  that  plaintiffs  are  the  owners  of  and  entitled  to 
the  full  flow  of  the  water  every  three  and  a  half  days  out  of  j 
every  seven  days,  and  that  the  defendants  are  entitled  to  such 
flow  for  three  and  a  half  days  out  of  every  seven,  and  the  j 
plaintiffs'  title  to  such  flow  is  quieted.  Appellants  contend 
that  the  above  finding  and  the  judgment  are  outside  of  the 
issues  made  by  the  pleadings. 

Plaintiffs  alleged  in  their  complaint  that  they  were  entitled 
to  the  flow  of  "all  the  waters"  flowing  in  Harrison  canyon; 
and  defendants,  in  their  answer,  denied  that  plaintiffs  were 
entitled  to  the  flow  of  any  of  said  waters.  The  court  found 
and  decreed,  substantially,  that  plaintiffs  were  entitled  to  the 
flow  of  some  of  said  waters,  but  not  of  all,  and  that  their  right 
to  have  the  waters  of  said  creek  flow  down  to  and  upon  their 


HARRIS  v.  HARRISON.  13 

land  was  subject  to  the  use  of  said  waters  by  defendants  as 
upper  riparian  proprietors.  Now,  a  plaintiff  in  an  action  to 
quiet  title,  or  in  an  action  of  ejectment,  does  not  lose  his  case 
by  a  failure  to  establish  his  title  to  the  whole  of  the  property 
described  in  his  complaint;  he  may  recover — upon  sufficient 
proof — either  a  segregated  part  of  the  premises  sued  for,  or 
an  undivided  interest  therein.  And  so  if  the  judgment  in 
the  case  at  bar  had  been  for  a  certain  part  of  the"  continuous 
flow  of  the  stream,  as,  for  instance,  one-half  thereof,  or  a 
certain  number  of  inches,  there  could  have  been  no  objection 
to  its  form.  In  that  event,  plaintiff  would  have  simply  recov- 
ered, in  the  ordinary  way,  a  part  of  the  property  for  which 
he  sued.  But  could  the  court  apportion  the  use  of  the  water 
between  the  parties,  aa  was  attempted  to  be  done  by  the 
judgment  ? 

According  to  the  common-law  doctrine  of  riparian  owner- 
ship as  generally  declared  in  England  and  in  most  of  the 
American  states,  upon  the  facts  in  the  case  at  bar  the  plain- 
tiffs would  be  entitled  to  have  the  waters  of  Harrison  canyon 
continue  to  flow  to  and  upon  their  land  as  they  were  naturally 
accustomed  to  flow,  without  any  substantial  deterioration  in 
quality  or  diminution  in  quantity.  But  in  some  of  the  west- 
ern and  southwestern  states  and  territories,  where  the  year  is 
divided  into  one  wet  and  one  dry  season,  and  irrigation  is 
necessary  to  successful  cultivation  of  the  soil,  the  doctrine  of 
riparian  ownership  hasjby  judicial  decision  been  modified,  or 
rather  enlarged,  so  as  to  include  the  reasonable  use  of  natural 
water  for  irrigating  the  riparian  land,  although  such  use  may 
appreciably  diminish  the  flow  down  to  the  lower  riparian 
proprietor.  And  this  must  be  taken  to  be  the  established 
rule  in  California,  at  least,  where  irrigation  is  thus  necessary. 
(Lux  v.  Hagcjin,  69  Cal.  394,  10  Pac.  674.)  Of  course  there 
will  be  great  difficulty  in  many  cases  to  determine  what  is 
such  reasonable  use;  and  "what  is  such  reasonable  use  is  a 
question  of  fact,  and  depends  upon  the  circumstances  appear- 
ing in  each  particular  case."  (Lux  v.  Eaggin,  69  Cal.  39-4, 
10  Pac.  674.)  The  larger  the  number  of  riparian  proprie- 
tors whose  rights  are  involved,  the  greater  will  be  the  difficulty 
of  adjustment.  In  such  a  case,  the  length  of  the  stream,  the 


14  WATER  RIGHTS  AND  IRRIGATION  LAW. 

volume  of  water  in  it,  the  extent  of  each  ownership  along 
the  banks,  the  character  of  the  soil  owned  by  each  contestant, 
the  area  sought  to  be  irrigated  by  each,  all  these,  and  many 
other  considerations,  must  enter  the  solution  of  the  problem; 
but  one  principle  is  surely  established,  namely,  that  no  pro- 
prietor can  absorb  all  the  water  of  the  stream  so  as  to  allow 
none  to  flow  down  to  his  neighbor. 

In  the  case  at  bar,  only  the  rights  of  two  riparian  proprie- 
tors are  to  be  considered;  none  other  are  involved.  And  the 
amount  of  water  in  the  stream  is  so  small  that  it  is  apparent 
that  defendants  could  not  use  it  for  any  useful  irrigation 
without  practically  absorbing  it  all,  and  leaving  none  to  flow 
down  to  plaintiff's  land.  There  was  sufficient  evidence  to 
warrant  the  finding  of  the  court,  that  in  order  to  irrigate  "it 
is  necessary  that  the  full  flow  of  the  stream  be  used  at  once." 
But  defendants,  as  well  as  plaintiffs,  were  entitled  to  a  rea- 
sonable use  of  the  water  for  irrigation;  and  the  rights  of 
neither  could  be  declared  or  preserved  by  an  attempted  divi- 
sion of  the  flow  of  the  water  without  reference  to  time.  The 
only  way,  therefore,  to  preserve  those  rights,  and  to  render 
them  beneficial,  was  to  decree  to  the  parties  the  use  of  the  full 
flow  of  the  stream  during  alternate  periods  of  time;  and  we 
do  not  see  why  the  court  could  not  decree  a  division  of  the 
use  of  the  water  according  to  that  method,  when  there  was  no 
other  method  by  which  it  could  be  done.  And  that  the  di- 
vision was  a  just  one  and  not  erroneously  determined  upon 
seems  clear.  The  evidence  showed  that  the  arable  and  irri- 
gable land  of  each  party  was  about  equal  in  area;  and  there  is 
no  contention  that  the  division  was  not  equitable,  provided 
that  all  the  other  facts  were  correctly  found  by  the  court. 

We  see  no  difficulty  in  the  point  that  the  pleadings  do  not 
support  the  judgment.  We  see  no  reason  why  a  court  of 
equity,  in  a  case  like  this,  could  not  decree  such  an  adjust- 
ment of  disputed  water  rights  as  was  decreed  in  this  case  upon 
the  ordinary  pleadings  in  an  action  to  quiet  title.  Upon- 
such  pleadings,  the  rights  of  the  parties  to  and  in  the  prop- 
erty involved  are  at  issue,  and  the  court  has  jurisdiction  to 
definitely  and  finally  determine  them.  The  pleadings  in  this 
case,  however,  set  up  the  rights  of  the  parties  to  irrigate  their 


SOUTHERN  CALIFORNIA  INVESTMENT  Co.  v.  WILSHIRE.     15 

respective  lands  by  the  use  of  the  water  right  in  litigation, 
and  it  is  difficult  to  see  what  further  pleadings  were  neces- 
sary. .  .  . 

Judgment  and  order  affirmed, 

h* 


Measure  of  Riparian  Rights — Prescriptive  Rights — Reason- 
able Use. 

SOUTHERN  CALIFORNIA  INVESTMENT  COMPANY, 
Appellant,  v.  GEORGE  WILSHIRE  et  al.,  Respond- 
ents. 

(144  Cal.  68,  77  Pac.  767.) 

SHAW,  J. — The  complaint  states  a  cause  of  action  to  quiet 
the  alleged  title  of  plaintiff  to  the  use  of  all  the  waters  of  a 
certain  stream  in  San  Bernardino  county  known  as  Edgar 
creek.  The  answer  denies  plaintiff's  title  and  sets  forth  the 
title  of  defendants.  The  plaintiff  appeals  from  the  judg- 
ment and  from  an  order  denying  its  motion  for  a  new  trial. 

Upon  the  appeal  from  the  order  denying  the  motion  for  a 
new  trial,  the  plaintiff  assigns  as  error  the  insufficiency  of  the 
evidence  to  justify  several  of  the  findings.  Upon  an  examina- 
tion of  the  record  we  find  that  there  is  sufficient  evidence 
tending  to  support  the  respective  findings  to  bring  the  case 
within  the  rule  that  this  court  cannot  disturb  the  decision  of 
the  court  below  upon  questions  of  fact  depending  upon  con- 
flicting evidence.  The  testimony  is  voluminous  and  of  the 
character  usually  given  upon  contests  relating  to  title  by 
prescription.  It  would  serve  no  useful  purpose  to  discuss  it 
in  detail. 

We  are  of  the  opinion  that  the  judgment,  in  certain  par- 
ticulars, is  not  supported  by  the  findings,  and  that  it  must  in 
consequence  thereof  be  modified. 

The  prayer  of  the  complaint  is  that  all  the  adverse  claims 
of  the  defendants,  or  either  of  them,  to  the  waters  be  deter- 
mined, and  that  they  and  each  of  them  be  enjoined  from 
asserting  any  claim  to  any  part  of  the  waters  of  the  stream 


16  WATER  RIGHTS  AND  IRRIGATION  LAW. 

adverse  to  the  plaintiff.  The  defendants  allege  that  they  and 
their  predecessors  in  interest  are,  and  for  years  have  been, 
the  owners  of  a  large  body  of  land  situate  upon  the  creek 
some  three  or  four  miles  above  the  land  of  the  plaintiff ;  that 
they  have  the  right  to  use  the  water  thereon  as  riparian  pro- 
prietors by  reason  of  the  fact  that  the  creek  flows  through  the 
land  described,  and  that  they  have  the  further  right  to  the  use  \ 
of  all  of  said  water  flowing  through  their  land,  for  irrigation, 
domestic  use,  and  the  watering  of  stock  upon  the  said  lands 
by  virtue  of  the  appropriation  and  continuous  adverse  use 
thereunder.  The  complaint  does  not  state  the  nature  of  the 
plaintiff's  right  to  the  water,  whether  by  virtue  of  a  riparian 
right  or  a  prescriptive  right.  Upon  the  issues  thus  presented 
it  was  the  duty  of  the  court  to  determine,  and  in  its  judg- 
ment declare,  the  extent  of  the  right  of  the  defendants  as 
well  as  that  of  the  plaintiff. 

The  court  finds  that  the  plaintiff  was  also  the  owner  of  some 
three  hundred  and  twenty  acres  of  land  situated  upon  the 
creek,  and  with  respect  to  the  riparian  rights  in  the  waters  it 
finds  that  both  the  plaintiff  and  the  defendants  have  the  right 
to  use  the  waters  of  the  stream  as  riparian  proprietors,  in 
proportion  to  the  respective  ownership  of  lands  on  the  stream 
owned  by  them  respectively,  in  common  with  the  other  owners 
of  land  situated  along  the  stream  having  similar  rights,  but 
that  these  riparian  rights,  both  the  plaintiff  and  defendants, 
are  subject  to  the  prescriptive  rights  in  the  water  found  to  be 
owned  by  the  plaintiff  and  defendants  respectively.  It  fur- 
ther finds  that  the  plaintiff  is  the  owner  and  entitled  to  the 
use  of  all  that  portion  of  the  flow  of  the  creek  and  of  the 
waters  thereof  rising  and  customarily  flowing  in  the  creek 
after  the  defendants'  rights  to  said  stream  have  been  fully 
satisfied,  and  not  otherwise.  This  finding,  we  understand, 
refers  to  the  plaintiff's  right  by  virtue  of  appropriation  and 
prescription.  With  respect  to  the  prescriptive  rights  of  the 
defendants  the  court  finds  that  the  defendants  are  the  owners 
of  the  right  to  the  use  of  all  the  surface  waters  of  the  creek 
flowing  at  the  upper  boundary  of  their  land,  for  the  purpose 
of  irrigation  and  domestic  use  upon  said  land. 

The  judgment  declares  that  plaintiff  and  defendants  are 
riparian  proprietors  upon  the  stream,  and  have,  respectively, 


SOUTHERN  CALIFOBNIA  INVESTMENT  Co.  v.  WILSHIRE.     17 

the  right  to  use  the  water  of  the  stream  "proportionately  to 
the  frontage  of  their  lands  upon  the  said  stream,  considered 
with  regard  to  the  whole  frontage  of  land  upon  said  stream" ; 
that  the  defendants  are  the  owners  and  entitled  to  the  full, 
free  and  uninterrupted  use  and  enjoyment  of  all  the  surface 
waters  of  the  creek  flowing  at  their  point  of  diversion  near 
the  north  line  of  their  lands,  that  the  plaintiff  is  entitled  to 
all  the  waters  of  the  stream  customarily  flowing  in  the  stream 
at  its  dam,  a  short  distance  above  its  land,  where  the  ditch 
begins  by  which  it  acquired  the  prescriptive  right  referred 
to  in  the  findings,  and  that  all  the  rights  of  the  plaintiff  in  the 
waters  of  the  stream  are  subject  and  subordinate  to  the  pre- 1 
scriptive  rights  therein  adjudged  to  be  owned  by  the  defend- 
ants. 

The  judgment  declaring  the  measure  of  the  respective  ripar- 
ian rights  of  the  parties  is  not  correct.  Where  two  persons 
own  land  along  the  line  of  a  watercourse,  the  measure  of  their 
rights  is  not  necessarily  controlled  solely  by  the  length  of 
their  respective  frontages  on  the  stream.  Many  other  things 
may  enter  into  the  question.  One  may  have  a  tract  of  land 
of  such  character  that  but  little  use  could  be  made  of  the 
water  upon  it,  while  the  land  of  the  other  may  all  be  so  situ- 
ated that  it  could  be  irrigated  with  profit  and  advantage. 
In  Harris  v.  Harrison,  93  Cal.  681,  29  Pac.  325,  it  is  said: 
"In  such  a  case,  the  length  of  the  stream,  the  volume  of  water 
in  it,  the  extent  of  each  ownership  along  the  banks,  the  char- 
acter of  the  soil  owned  by  each  contestant,  the  area  sought 
to  be  irrigated  by  each — all  these  and  many  other  considera- 
tions must  enter  into  the  solution  of  the  problem. ' '  And  the 
general  rule  is  there  stated  to  be,  in  cases  where  there  is  not 
water  enough  to  supply  the  wants  of  both,  that  each  owner  has 
the  right  to  the  reasonable  use  of  the  water,  taking  into  con- 
sideration the  rights  and  necessities  of  the  other. 

Upon  the  findings,  with  respect  to  the  water  rights  of  the 
defendants,  the  court  should  not  have  adjudged  that  the 
defendants  were  the  absolute  and  unqualified  owners  of  the 
right  to  divert  and  use  all  the  surface  waters  of  the  stream. 
The  owner  of  a  prescriptive  right  to  the  waters  of  a  stream  ^ 
has  not  the  unconditional  right  to  change  the  place  of  its  use 
at  his  pleasure.  The  right  to  change  the  place  of  use  is  sub- 
2 


18  WATER  RIGHTS  AND  IRRIGATION  LAW. 

ject  to  the  qualification  that  where  there  are  other  persons 
having  subordinate'  rights  to  the  waters  of  the  stream,  the 
right  to  change  the  place  of  use  can  only  be  exercised  when, 
and  to  the  extent  that,  such  change  will  not  injure  the  subordi- 
nate right.  That  portion  of  the  judgment  which  purports  to 
vest  in  the  defendants  the  absolute  right  to  divert  the  water 
is  erroneous,  in  that  it  does  not  limit  such  right  to  the  use  of 
the  water  on  the  land  for  the  benefit  of  which  it  was  acquired. 
When  the  title  to  water  is  acquired  by  adverse  use,  the  extent 
of  the  right  is  limited  by  the  extent  of  the  use  which  conferred 
the  title.  The  findings  limit  this  right,  as  it  should  be  limited, 
but  the  judgment  goes  further  and  gives  an  absolute  right,  the 
effect  of  which  is  that  the  defendants  would  have  the  right 
to  take  out  the  water  and  make  use  of  it  as  they  see  fit,  either 
on  the  lands  within  the  watershed  for  the  benefit  of  which  it 
was  appropriated,  or  upon  other  lands,  or  for  some  other  use 
beyond  and  outside  of  the  watershed.  The  action  was  begun 
in  September,  1888.  The  trial  began  in  June,  1889,  but, 
after  the  greater  part  of  the  evidence  was  taken,  for  some 
reason  not  appearing,  the  trial  was  continued  from  year  to 
year  until  June,  1901,  when  some  additional  evidence  was 
taken,  and  thereupon  the  findings  and  judgment  were  made 
and  rendered.  From  the  evidence  taken  in  1901  it  appears 
that,  in  1899,  long  after  the  action  was  begun,  one  of  the 
defendants,  who  owned  the  right  to  use  one-third  of  the  water 
on  a  certain  portion  of  the  lands  described  in  the  answer,  at- 
tempted to  sell  his  water  right  to  the  city  of  Redlands,  and 
that  in  pursuance  thereof  the  water  which  he  had  theretofore 
been  accustomed  to  use  upon  the  lands  within  the  watershed 
had  been  taken  through  a  pipe,  over  the  divide  and  beyond 
the  watershed  of  the  creek,  some  ten  or  fifteen  miles,  to  the 
city  of  Redlands  and  was  there  used  by  the  city.  This  per- 
haps accounts  for  the  form  of  the  judgment,  which,  if  allowed 
to  stand,  would  secure  to  the  defendants  the  right  to  make 
ihis  disposition  of  the  water.  The  court  finds  that,  notwith- . 
standing  the  diversion  of  all  the  water  of  the  creek  by  the 
defendants,  at  their  point  of  diversion,  and  its  use  upon  their 
land  for  irrigation,  a  part  thereof  seeped  into  the  soil  and 
percolated  through  the  same  until  it  again  reached  the  stream, 
and  that  a  portion  of  this  water,  thus  seeping  into  the  soil, 


SOUTHERN  CALIFORNIA  INVESTMENT  Co.  v.  WILSHIRE.     19 

reached  the  point  of  diversion  of  the  plaintiff.  From  the 
nature  of  the  soil  and  the  heavy  grade  of  the  lands  it  is  mani- 
fest that  this  would  be  the  case.  The  court  further  finds  that, 
without  the  addition  to  the  stream  thus  caused  by  the  seep- 
age of  water  used  by  the  defendants,  there  had  always  been, 
from  other  additions  and  seepages,  sufficient  water  flowing  in 
the  stream  at  the  plaintiff's  point  of  diversion  to  irrigate  all 
the  lands  actually  cultivated  by  the  plaintiff  and  its  prede- 
cessors, which  the  evidence  shows  was  about  twenty-five  acres. 
From  this  it  would  appear  that  the  diversion  of  the  water 
taken  by  the  plaintiff,  and  the  carrying  of  it  beyond  the  water-, 
shed,  would  not  injure  the  prescriptive  right  of  plaintiff.  If 
no  other  rights  were  involved  the  change  of  the  place  of  use 
would  be  without  injury.  But  the  plaintiff  has  riparian 
rights  in  the  stream,  and  this  right  extends  to  all  the  water 
flowing  in  the  stream  through  its  lands,  including  that  which 
the  defendants  allowed  to  escape,  and  which  seeped  into  the 
stream  after  being  used  for  irrigation,  as  well  as  that  which 
flows  in  the  stream  in  excess  of  the  increase  thus  received. 
As  such  riparian  owner,  it  has  the  right  to  have  the  stream 
continue  to  flow  through  its  lands  in  the  accustomed  manner, 
and  to  use  the  same  to  irrigate  an  additional  area  thereof, 
undiminished  by  any  additional  or  more  injurious  use  or  di- 
version of  the  water  upon  the  stream  above.  This  right  is  a 
part  of  the  estate  of  the  plaintiff — parcel  of  its  land — and 
whether  it  is  or  is  not  as  valuable  in  a  monetary  point  of 
view,  or  as  beneficial  to  the  community  in  general,  as  would 
be  the  use  of  a  like  quantity  of  wrater  in  some  other  place,  it 
cannot  be  taken  by  the  defendants  without  right,  or,  in  case 
of  a  public  use  elsewhere,  without  compensation.  It  is  not 
necessary  in  such  cases  for  the  plaintiff  to  show  damages,  in 
order  that  it  may  be  entitled  to  a  judgment.  It  is  enough  if 
it  appears  that  the  continuance  of  the  acts  of  the  defendants 
will  deprive  it  of  a  right  of  property,  a  valuable  part  of  its 
estate.  The  taking  of  the  water  beyond  the  watershed  would, 
therefore,  be  an  injury  to  the  plaintiff's  riparian  right  which, 
under  the  pleadings  and  findings  in  the  case,  the  plaintiff  was 
entitled  to  have  enjoined.  The  judgment  should  enjoin  the 
defendants  from  using  the  water  otherwise  than  as  the  court 
finds,  and  rightfully  adjudges  that  they  are  entitled  to  such 


20  WATER  RIGHTS  AND  IRRIGATION  LAW. 

use.  They  were  not  entitled  to  the  use  of  the  water  except 
upon  the  lands  described  in  the  answer.  The  judgment 
should,  therefore,  be  modified  so  as  to  properly  describe  the 
respective  rights  of  the  parties  as  riparian  owners,  and  so  as 
to  enjoin  the  defendants  from  using  the  water  of  the  creek 
except  upon  the  lands  of  the  defendants  described  in  the 
answer,  and  for  the  purposes  of  irrigation  and  domestic  use 
thereon. 

The  other  alleged  errors  do  not  require  extended  notice. 
The  fact  that  during  the  time  the  defendants  were  using  the 
water  adversely  to  the  plaintiff,  the  defendants'  lands,  upon 
which  they  were  using  the  water,  were  vacant  government 
lands,  did  not  make  their  use  the  less  adverse,  nor  prevent 
them  from  acquiring  a  right  thereby.  Any  lawful  use  at  any 
place  would  be  sufficient  for  that  purpose,  regardless  of  the 
title  of  the  defendants  to  the  land  on  which  it  was  used.  .  .  . 

The  judgment,  as  so  modified,  and  the  order  denying  the 
motion  for  a  new  trial  are  affirmed. 


What  Land  is  Riparian — Land  not  Abutting  Stream  Con- 
tiguous to  Underground  Flow — Conveyance — Loss  of 
Riparian  Rights. 

ANAHEIM   UNION   WATER    COMPANY    and    SANTA 
ANA  VALLEY  IRRIGATION   COMPANY,   Respond- 
ents,   v.    0.    B.    FULLER,    G.    H.    FULLER,    FRED 
ZUCKER,  and  F.  J.  SMITH,  Appellants. 
(150  Cal.  327,  88  Pac.  978.) 

SHAW,  J. — This  is  an  action  to  enjoin  the  defendants  from 
diverting  the  water  from  the  Santa  Ana  river.  Judgment  in 
favor  of  the  plaintiffs  as  prayed  for  was  given  in  the  court 
below.  The  defendants  appeal  from  the  judgment  and  from 
an  order  denying  their  motion  for  a  new  trial. 

The  plaintiffs  own  lands  through  which  the  Santa  Ana 
river  flows.  They  have  been  accustomed  for  many  years  to 


ANAHEIM  UNION  WATER  Co.  v.  FULLER.  21 

irrigate  this  land  with  water  from  the  river,  and  for  that 
purpose  there  is  required  during  the  irrigation  season  a  con- 
tinuous flow  of  four  hundred  miner's  inches  of  water.  The 
defendants,  or  some  of  them,  own  land  on  the  river,  situated 
above  the  land  of  the  plaintiffs,  and  upon  it  they  had  built 
a  dam  in  the  river  and  were  thereby  diverting  water  from 
the  stream,  which,  by  means  of  a  ditch,  they  were  conducting 
to  other  lands  owned  by  them  and  were  there  using  it  for 
irrigation.  The  plaintiffs  claim,  and  the  court  found,  that  the 
land  which  the  defendants  were  thus  irrigating  with  water 
from  the  river  was  not  riparian  thereto.  The  sufficiency  of 
the  evidence  to  support  this  finding,  and  the  question  whether 
or  not  the  plaintiffs'  land  is  entitled  to  riparian  rights  in  the 
river,  are  the  principal  questions  presented  upon  the  appeals. 

1.  The  defendants  claim  that  the  land  of  the  plaintiffs  lies 
within,  and  constitutes  a  part  of,  the  bed  of  the  stream,  and 
contend  that  such  land  is  not  riparian,  nor,  as  such,  entitled  to 
the  use  of  the  water  of  the  stream.  It  appears  that  the  land 
consists  of  good  soil,  capable  of  producing  valuable  crops ;  that 
it  abuts  on  the  river,  and  that  it  has  been  successfully  culti- 
vated and  irrigated  by  the  plaintiffs  and  their  predecessors 
for  many  years.  The  only  facts  upon  which  the  claim  that  it 
is  nonriparian  is  based  are  that  it  forms  part  of  the  wide  bot- 
tom extending  between  higher  lands  or  bluffs  on  each  side; 
that  the  course  of  the  river  channel  is  subject  to  changes  by 
unusual  floods,  although  no  substantial  change  has  occurred 
for  forty  years  last  past,  and  that  the  land  is  all  underlaid  by 
an  underground  flow  in  contact  with  and  forming  a  part  of 
the  surface  stream.  We  are  of  the  opinion  that  land,  thus 
situated,  is  not  to  be  distinguished  from  other  land  abutting 
on  the  stream,  so  far  as  the  right  of  the  owner  to  the  reason- 
able use  of  the  water  is  concerned.  We  know  of  no  principle 
of  riparian  rights  that  would  except  such  land  from  its  bene- 
fits, nor  of  any  decision  to  that  effect.  The  opinion  in  Ventura 
L.  &  P.  Co.  v.  Meiners,  136  Cal.  284,  89  Am.  St.  Rep.  128,  68 
Pac.  818,  contains  nothing  that  can  be  so  construed.  It  ap- 
pears to  decide  that  land  may  be  riparian  to  a  stream,  although 
it  does  not  abut  thereon  except  when  the  stream  is  swollen  by 
floods.  Without  conceding  the  soundness  of  the  decision  so 
far  as  it  seems  to  decide  that  the  owner  of  such  land  may 


22  WATER  EIGHTS  AND  IRRIGATION  LAW. 

take  water  from  the  stream  at  its  ordinary  flow  as  against 
other  owners  whose  lands  abut  upon  such  ordinary  stream, 
we  think  it  is  clear  that  the  discussion  in  the  opinion  as  to 
the  character  of  the  ground  lying  between  the  edge  of  the 
stream  at  its  ordinary  flow  and  the  line  of  high  water  when 
in  flood  has  no  reference  to  the  right  of  the  owner  of  such  in- 
tervening land,  as  a  riparian  owner,  to  use  the  water  of  the 
stream  for  any  useful  purpose  which  his  position  upon  the 
stream  enables  him  to  make  of  it.  The  land  here  involved  was 
not  at  all  similar  to  the  land  described  in  the  opinion  in  that 
case.  The  case  of  Diedrich  v.  North  Western  Union  Ey.  Co., 
42  Wis.  248,  24  Am.  Rep.  399,  is  not  in  point.  It  refers  to  the 
rights  of  the  owner  of  land  lying  wholly  under  the  bed  of  a 
navigable  lake,  and  holds  that  such  owner  may  not  erect 
wharves  or  other  structures  thereon  which  would  interfere 
with  navigation,  and  that  in  that  respect  he  has  not  the  right  of 
one  owning  land  along  the  bank  of  such  lake  to  erect  wharves 
in  aid  of  navigation  for  his  own  use.  There  is  nothing  in  that 
opinion  to  indicate  that  the  owner  of  land  which  was  under 
the  bed  of  an  ordinary  stream  might  not,  by  virtue  of  the 
position  of  his  land,  have  such  benefit  from 'the  waters  as  he 
could  get  from  it.  This  question,  however,  is  not  involved  in 
the  case  at  bar,  for  we  are  of  the  opinion  that  the  plaintiffs' 
land  was  not  in  the  bed  of  the  stream  in  any  proper  sense  of 
the  term. 

2.  Some  distance  below  the  land  of  the  plaintiffs  a  tributary 
known  as  Chino  creek  enters  the  Santa  Ana  river.  Chino 
creek  also  has  a  tributary  known  as  Mill  creek,  which  enters 
Chino  creek  one  and  one-half  miles  above  the  confluence  of 
the  latter  with  the  Santa  Ana  river.  The  defendants  take  the 
water  from  the  river,  above  the  land  of  the  plaintiffs,  in  a 
ditch  which  extends  across  the  low  bottom  to  the  high  land  or 
bluff  and  then  extends  along  the  bluff  at  a  grade  less  than 
that  of  the  river,  gradually  getting  farther  above  and  away 
from  the  river  until  it  reaches  and  crosses  the  divide,  or  sum- 
mit of  the  elevated  land,  between  the  river  and  Mill  creek. 
The  court  found  that  the  land  irrigated  with  water  from  this 
ditch  lies  beyond  this  divide  and  is  wholly  within  the  water- 
shed of  Mill  creek,  and  that  it  does  not  abut  upon  the  stream 
of  the  Santa  Ana  and  is  not  riparian  thereto.  Land  which 


ANAHEIM  UNION  WATER  Co.  v.  FULLER.  23 

is  not  within  the  watershed  of  the  river  is  not  riparian  thereto, 
and  is  not  entitled,  as  riparian  land,  to  the  use  or  benefit  of 
the  water  from  the  river,  although  it  may  be  a  part  of  an 
entire  tract  which  does  extend  to  the  river.  .  .  . 

The  defendants  claim  that  these  findings  are  contrary  to  the 
evidence  and  that  this  rule  does  not  apply  to  the  land  they 
seek  to  irrigate,  because,  while  it  is  wholly  within  the  Mill 
creek  watershed,  it  is  also  within  the  general  watershed  of  the 
Santa  Ana  river,  considered  as  an  entirety,  including  the  val- 
ley and  the  slopes  leading  thereto  from  its  sources  to  its  mouth. 
This  fact  does  not  affect  the  case,  at  least  so  far  as  the  land  of 
the  plaintiffs  is  concerned.  The  principal  reasons  for  the  rule 
confining  riparian  rights  to  that  part  of  lands  bordering  on  the 
stream  which  are  within  the  watershed  are,  that  where  the 
water  is  used  on  such  land  it  will,  after  such  use,  return  to 
the  stream,  so  far  as  it  is  not  consumed,  and  that,  as  the  rain- 
fall on  such  land  feeds  the  stream,  the  land  is,  in  consequence, 
entitled,  so  to  speak,  to  the  use  of  its  waters.  Where  two 
streams  unite,  we  think  the  correct  rule  to  be  applied,  in  re- 
gard to  the  riparian  rights  therein,  is  that  each  is  to  be  con- 
sidered as  a  separate  stream,  with  regard  to  lands  abutting 
thereon,  above  the  junction,  and  that  land  lying  within  the 
watershed  of  one  stream  above  that  point  is  not  to  be  consid- 
ered as  riparian  to  the  other  stream.  The  fact  that  the  streams 
are  of  different  size,  or  that  both  lie  in  one  general  watershed 
or  drainage  basin  should  not  affect  the  rule,  nor  should  it'fce 
changed  by  the  additional  fact  that  the  two  watersheds  are 
separated  merely  by  the  summit  or  crown  of  a  comparatively 
low  tableland,  or  mesa,  as  it  is  called  in  the  evidence,  and  not 
by  a  sharp  or  well-defined  ridge,  range  of  hills,  or  mountains. 
The  reasons  for  the  rule  are  the  same  in  either  case.  In  some 
cases  it  may  be  difficult  to  distinguish  the  line  of  separation. 
This  seems  to  have  been  a  case  of  that  sort.  Nevertheless,  we 
think  there  is  evidence  sufficient  to  support  the  finding  of  the 
court  that  there  is  a  dividing  line  between  the  two  watersheds 
and  that  the  land  irrigated  by  defendants  lies  upon  the  slope 
which  descends  into  Mill  creek.  It  is  not  necessary  to  discuss 
this  evidence  in  detail. 

The  evidence  also  supports  the  finding  that  the  land  irri- 
gated by  the  defendants  does  not  abut  upon  or  extend  to  the 


N/ 

24  WATER  EIGHTS  AND  IRRIGATION  LAW. 

river,  if  the  owner  of  a  tract  abutting  on  a  stream  conveys 
to  another  a  part  of  the  land  not  contiguous  to  the  stream,  he 
thereby  cuts  off  the  part  so  conveyed  from  all  participation 
in  the  use  of  the  stream  and  from  riparian  rights  therein, 
unless  the  conveyance  declares  the  contrary.  Land  thus  con- 
veyed and  severed  from  the  stream  can  never  regain  the  ri- 
parian right,  although  it  may  thereafter  be  reconveyed  to  the 
person  who  owns  the  part  abutting  on  the  stream,  so  that  the 
two  tracts  are  again  held  in  one  ownership.  (Boehmer  v. 
Big  Rock  C.  I.  Dist.,  117  Cal.  26,  48  Pac.  908 ;  Alta  Land  Co. 
v.  Hancock,  85  Cal.  229,  20  Am.  St.  Rep.  217,  24  Pac.  645; 
Lux  v.  Haggin,  69  Cal.  424,  10  Pac.  674 ;  Watkins  L.  Co.  v. 
Clements,  98  Tex.  578,  107  Am.  St.  Rep.  653,  86  S.  W.  738,  70 
L.  R.  A.  964;  2  Farnham  on  Waters,  p.  1572,  sec.  463a.)  All 
the  land  belonging  to  the  defendants,  including  the  Smith 
tract,  which  was  in  part  irrigated,  was  originally  a  part  of  the 
Jurupa  Rancho,  which  abutted  upon  the  river.  The  original 
owner  of  that  rancho  subdivided  it  by  arbitrary  lines,  corre- 
sponding to  the  government  surveys,  and  sold  and  conveyed 
it  in  parcels  according  to  that  survey.  Under  the  rule  above 
stated,  the  conveyance  by  him  of  a  tract  not  contiguous  to  the 
stream  would  sever  such  tract  from  the  riparian  interest  and 
deprive  it  of  subsequent  participation  in  the  use  of  the  water 
of  the  river,  the  right  to  which  previously  attached  to  the  en- 
tire rancho.  The  tract  which  includes  the  irrigated  land  of 
the  defendants  is  not  at  any  point  contiguous  to  the  river.  At 
the  time  the  action  was  begun  it  was  owned  by  the  defendant, 
Smith.  He  was  not  the  owner  of  any  adjoining  land  which 
lay  contiguous  to  the  river.  After  the  action  was  begun  he 
conveyed  this  land  to  certain  of  the  other  defendants,  some  of 
whom  owned  adjoining  lands  extending  from  the  Smith  land 
to  the  river.  This  subsequent  conveyance  gave  those  defend- 
ants a  continuous  ownership  of  land  extending  from  the  river 
to  and  including  the  Smith  land.  This  contiguous  ownership, 
however,  did  not  confer  upon  the  Smith  land  the  riparian 
rights  of  which  it  was  deprived  when  Smith,  or  his  prede- 
cessors, obtained  it  by  a  conveyance  which  severed  it  from  the 
portion  of  the  Jurupa  Rancho  abutting  upon  the  river. 

It  seems  to  be  contended  that,  for  the  purpose  of  deter- 
mining what  lands  are  riparian,  the  river  is  to  be  considered  as 


ANAHEIM  UNION  WATER  Co.  v.  FULLER.  25 

including  all  the  space  through  which  the  underground  flow 
extends,  as  well  as  that  occupied  by  the  surface  stream.  It  is 
claimed  by  the  appellants,  and  apparently  conceded  by  the 
respondents,  that  the  Smith  tract  at  one  or  two  of  its  angles 
extends  into  the  low  bottom  under  which  the  underground 
water  flows  or  percolates,  and  upon  this  circumstance  riparian 
rights  are  asserted  to  accrue.  It  is  not  necessary  here  to  de- 
cide what  rights  to  the  use  of  the  underground  flow  of  a  stream 
ma}r,  by  virtue  of  its  position,  attach  to  land  which  abuts  upon 
or  extends  into  or  over  such  waters,  but  does  not  extend  to 
the  surface  stream.  We  are  certain  that  such  location  of  the 
land,  with  relation  to  the  stream,  does  not  carry  the  right  to 
divert  water  from  the  surface  stream,  conduct  or  transport  it 
across  intervening  land  to  the  tract  thus  separated  from  such 
surface  stream,  and  there  apply  it  to  use  on  the  latter  to  the 
injury  of  lands  which  abut  upon  the  proper  banks  of  the  sur- 
face stream,  and,  hence,  that  even  if  the  Smith  land  were  all 
within  the  watershed,  such  location  upon  the  underground  flow 
does  not  justify  the  diversion  the  defendants  were  making 
from  the  surface  stream  for  use  upon  that  tract. 

3.  It  is  further  contended  that  the  plaintiffs'  land  is  in 
nowise  damaged  by  the  diversion  complained  of,  and  hence 
that  the  diversion  cannot  be  enjoined.  Upon  this  proposition 
the  decisions  of  this  court,  and  the  general  principles  of  law 
regarding  injunctions,  are  against  the  theory  of  the  defend- 
ants. In  Southern  Cal.  I.  Co.  v.  Wtishire,  144  Cal.  68,  77  Pac. 
767,  speaking  of  the  right  of  a  lower  riparian  proprietor  to 
enjoin  a  diversion  of  a  part  of  the  stream  for  use  outside  of 
the  watershed  of  the  stream,  leaving  enough  in  the  stream 
for  any  use  which  had  theretofore  been  made,  or  was  then 
proposed  to  be  made,  by  the  lower  riparian  proprietor  on  his 
land,  the  court  said :  "  It  is  not  necessary  in  such  cases,  for  the 
plaintiff  to  show  damages,  in  order  that  it  may  be  entitled  to 
a  judgment.  It  is  enough  if  it  appears  that  the  continuance 
of  the  acts  of  the  defendants  will  deprive  it  of  a  right  of 
property,  a  valuable  part  of  its  estate.  The  taking  of  the 
water  beyond  the  watershed  would,  therefore,  be  an  injury  to 
the  plaintiff's  riparian  right  which,  under  the  pleadings  and 
finding  in  the  case,  the  plaintiff  was  entitled  to  have  en- 
joined." ...  In  Vernon  I.  Co.  v.  Los  Angeles,  106  Cal.  243, 


26  WATER  RIGHTS  AND  IRRIGATION  LAW. 

39  Pac.  762,  the  plaintiff  was  not  claiming  any  injury  or  dam- 
age by  virtue  of  his  riparian  ownership,  but  was  asserting  the 
right  to  divert  water  for  use  upon  lands  not  riparian,  against 
the  city  of  Los  Angeles,  which  was  asserting  its  pueblo  right, 
and  what  was  said  in  that  case  with  respect  to  the  necessity  of 
showing  injury  must  be  taken  with  the  qualifications  made 
evident  by  the  character  of  the  case  and  by  the  concurring 
opinion  of  Mr.  Justice  McFarland.  The  conditions  existing 
in  those  cases  do  not  exist  in  the  case  at  bar.  The  court  finds, 
on  sufficient  evidence,  that  the  diversion  of  the  defendants,  if 
allowed,  would  render  plaintiffs'  land  much  less  fertile  and 
valuable.  The  defendants  do  not  propose  to  limit  the  diver- 
sion to  times  of  high  wtaer,  but,  on  the  contrary,  they  will 
take  it  during  the  time  of  its  greatest  scarcity.  There  is  no 
question  of  the  diversion  of  flood  water  involved  in  the  case. 
The  right  which  they  assert  is  the  right  to  take  the  ordinary 
water  of  the  stream,  and  hence  the  doctrine  of  the  Modoc  case 
does  not  apply. 

On  this  point  the  defendants  cite  several  cases  in  which  it 
is  held  that  a  lower  riparian  owner  cannot  enjoin  a  diversion 
by  another  riparian  proprietor  above,  unless  he  can  show  that 
such  diversion  works  damage  to  him  and  that  it  is  more  than 
a  just  proportion  of  the  water  to  which  the  upper  owner  is 
entitled.  Such  decisions  are  not  applicable  to  this  case.  Ri- 
parian owners  have  correlative  rights  in  the  stream,  and 
neither  is  a  trespasser  against  the  other  until  he  diverts  more 
than  his  share  and  injures  and  damages  the  other  thereby. 
Here  the  defendants  were  not,  with  respect  to  the  land  irri- 
gated, riparian  owners,  but  were  trespassers  on  plaintiffs' 
property  rights  from  the  beginning,  and  the  continuance  of 
the  trespass  for  a  sufficient  time  would  devest  the  right  of  the 
plaintiffs  with  respect  to  the  water  diverted.  The  same  dis- 
tinction exists  with  respect  to  cases  cited  involving  the  taking 
of  percolating  water  for  use  by  one  owner  upon  his  land,  to 
the  detriment  of  other  land  over  the  same  saturated  plane. 
The  rights  in  such  cases  are  correlative,  and  if  an  injunction 
can  issue  at  all  therein,  it  can  only  be  when  one  owner  takes 
more  than  his  due  proportion  and  damage  to  the  other  ensues 
from  such  excessive  taking. 


ANAHEIM  UNION  WATER  Co.  v.  FULLER.  27 

The  defendants  urge,  inasmuch  as  the  plaintiffs  need  but 
four  hundred  inches  of  water  for  their  land,  and  there  re- 
mained in  the  stream  after  defendants'  diversion  more  than 
two  thousand  inches,  which  flows  down  to  and  beyond  the 
plaintiffs'  land,  and  which  is  more  than  they  can  possibly  use 
thereon,  that  it  therefore  follows  that  no  damage  can  ever 
ensue,  even  if  the  diversion  is  unlawful  and  should  ripen  into 
a  prescriptive  right  by  continuance,  and,  hence,  that  their 
diversion  should  not  be  enjoined.  The  theory  of  the  law  of 
riparian  rights  in  this  state  is  that  the  water  of  a  stream  be- 
longs by  a  sort  of  common  right  to  the  several  riparian  owners 
along  the  stream,  each  being  entitled  to  sever  his  share  for  use 
on  his  riparian  land.  The  fact  that  a  large  quantity  of  water 
flows  down  the  stream  by  and  beyond  the  plaintiffs'  land  does 
not  prove  that  it  goes  to  waste,  nor  that  the  plaintiffs  are  en- 
titled to  take  a  part  of  it,  as  against  other  riparian  owners  or 
users  below.  Nor  can  it  be  said  that  plaintiffs,  on  account  of 
the  present  abundance,  could  safely  permit  defendants  to  ac- 
quire, as  against  them,  a  right  to  a  part  of  the  water.  The 
riparian  right  is  not  lost  by  disuse,  and  other  riparian  owners 
above  may  take,  or  others  below  may  be  entitled  to  take,  and 
may  insist  upon  being  allowed  to  take,  all  of  the  stream,  ex- 
cepting only  sufficient  for  the  plaintiffs'  land.  In  either  al- 
ternative, the  taking  of  a  part  of  the  water  by  the  defendants 
would  not  leave  enough  for  the  plaintiffs'  use.  There  is  noth- 
ing in  this  case  to  show  how  much  water  is  required  above  and 
below  by  those  having  rights  in  the  stream.  In  view  of  the 
well-known  aridity  of  the  climate  and  the  high  state  of  culti- 
vation in  the  vicinity,  the  court  could  almost  take  judicial 
notice  that  in  years  of  ordinary  rainfall  there  is  no  surplus  of 
water  in  the  stream  over  that  used  by  the  various  owners  un- 
der claim  of  right.  But,  however  this  may  be,  it  is  settled  by 
the  decisions  above  cited  that  a  party,  situated  as  the  plaintiffs 
are,  can  enjoin  an  unlawful  diversion,  in  order  to  protect  and 
preserve  his  riparian  right. 

The  findings  support  the  judgment,  and  we  are  unable  to 
perceive  any  substantial  or  material  conflict  in  them.  We 
find  no  error  in  the  record. 

The  judgment  and  order  are  affirmed. 


28  WATER  RIGHTS  AND  IRRIGATION  LAW. 


Nonriparian  Lands  Contiguous  to  Riparian  Lands — Percolat- 
ing Waters. 

P.  BOEHMER,   Appellant,  v.   BIG  ROCK  IRRIGATION 

DISTRICT    et  al.,  Respondents. 

(117  Cal.  19,  48  Pac.  908.) 

HAYNES,  C. — This  action  is  prosecuted  by  the  plaintiff  to 
quiet  title  to  certain  water  rights  alleged  to  be  appurtenant  to 
certain  of  his  lands  as  riparian  owner.  The  cause  was  heard 
upon  an  agreed  statement  of  facts  and  the  deposition  of  one 
witness.  Written  findings  were  filed  and  judgment  entered. 
The  defendants  moved  for  a  new  trial,  and  upon  the  hearing 
thereof  the  following  minute  order  was  made:  "Defendants 
move  the  court  for  new  trial  herein  on  the  grounds  stated  in 
the  notice  of  motion  on  file.  Motion  is  argued  and  thereupon 
granted  on  the  grounds  stated,  and  also  on  the  court's  own 
motion  for  the  reason  that  the  findings  are  contrary  to  the  evi- 
dence and  were  signed  and  filed  inadvertently  by  the  court 
without  observing  the  error,  same  having  been  prepared  by 
counsel  for  the  plaintiff." 

This  appeal  is  by  the  plaintiff  from  said  order.  Defend- 
ants' motion  for  a  new  trial  specified  three  findings  as  not 
justified  by  the  evidence.  .  .  . 

2.  It  is  also  clear  that  the  defendants'  exception  to  the  third 
finding  is  well  taken.  The  second  finding  is  the  plaintiff  is 
seised  in  fee  of  a  large  number  of  quarter  sections  therein  de- 
scribed by  section,  township,  and  range,  but  not  otherwise; 
and  the  third  finding  is  that  said  lands  lie  along  and  adjoin 
natural  streams  of  running  water,  namely,  the  Rio  Llano,  or 
Big  Rock  creek,  and  another  stream  known  as  Pallett  's  creek. 

The  individuals  named  as  defendants — as  to  whom  the  only 
allegation  is  that  they  constitute  the  board  of  directors  of  said 
irrigation  district — disclaimed  all  interest  in  the  controversy, 
and  the  corporation  disclaimed  all  interest  in  the  waters  of 
Pallett  creek.  The  stipulation  shows  that  three  of  the  quarter 
sections  in  township  4,  range  9  west,  do  not  touch  Big  Rock 
creek,  though  they  adjoin  other  quarter  sections  owned  by 
plaintiff  through  which  said  stream  runs;  and  the  same  is 


BOEHMER  v.  BIG  ROCK  IRRIGATION  DISTRICT.  29 

true  of  certain  quarter  sections  in  township  4  of  range  10  west. 
The  third  finding  would  show,  therefore,  that  all  the  lands  of 
plaintiff  described  in  the  complaint  are  riparian,  and  would 
eliminate  the  question  whether  the  quarter  sections  which  do 
not  touch  the  stream  are  riparian  because  they  are  contiguous 
to  other  quarter  sections  through  which  the  stream  runs,  and 
which  are  thus  brought  within  the  fourth  finding  which  is  that 
the  plaintiff's  lands  through  which  the  streams  run  are  ripa- 
rian, and  entitles  the  plaintiff  to  the  reasonable  and  necessary 
use  of  the  water  therefrom  for  domestic  and  irrigation  pur- 
poses, while  said  fourth  finding  clearly  limits  plaintiff's  ripa- 
rian rights  to  those  quarter  sections  through  which  the  streams 
run.  .  .  . 

Appellant  also  contends  that  his  riparian  rights  extend  to 
those  quarter  sections  not  on  the  stream,  inasmuch  as  they  are 
contiguous  to  those  that  are  washed  by  it. 

As  already  seen,  the  fourth  finding  obviously  intended  to 
limit  plaintiff's  riparian  rights  to  those  descriptions  through 
which  the  streams  run ;  but  this  intention  wras  defeated  by  the 
third  finding,  and,  the  judgment  having  been  entered  in  ac- 
cordance therewith,  the  result  is  that  all  of  the  plaintiff's 
tracts  of  land  described  in  the  complaint  are  adjudged  to  be 
riparian,  except  two  quarter  sections  constituting  the  north 
half  of  section  2  in  township  4,  range  10  west,  and  there  is 
nothing  in  the  findings  to  show  that  these  parcels  are  differ- 
ently situated. 

If  appellant's  contention  as  stated  in  his  brief  were  sound, 
it  would  follow  that  if  A  owned  a  tract  of  land  upon  a  stream, 
that  his  riparian  rights  which  he  acquired  by  the  purchase  of 
that  tract  would  extend  to  all  lands  he  might  subsequently 
acquire,  no  matter  from  whom  nor  under  what  circumstances 
his  vendor  obtained  title,  nor  how  distant  from  the  stream, 
provided  he  owned  all  the  land  between  the  stream  and  the 
land  so  purchased. 

The  facts  stipulated  are,  however,  that  all  the  lands  de- 
scribed in  the  complaint,  except  the  northeast  quarter  of 
section  7,  township  4  north,  range  9  west,  and  two  quarter 
sections  in  range  10,  were  patented  by  the  United  States  to 
William  S.  Chapman  on  June  1,  1870,  by  fourteen  separate 
patents  based  on  fourteen  different  entries,  and  that  plaintiff 


30  WATER  RIGHTS  AND  IRRIGATION  LAW. 

is  the  owner  of  each  of  these  fourteen  quarter  sections  "by 
mesue  conveyances  under  said  William  S.  Chapman." 

With  exception  of  lands  within  confirmed  Mexican  grants, 
the  Virginia  military  reservation  and  perhaps  some  other  res- 
ervations granted  in  the  early  days,  it  has  been  the  policy  of 
the  general  government  to  subdivide  the  public  domain  into 
small  tracts,  and  to  dispose  of  them  as  such,  and  for  the  pur- 
pose of  carrying  out  such  policy  restricted  the  right  of  entry 
under  the  homestead  and  pre-emption  laws  to  one  hundred  and 
sixty  acres.  Even  in  its  grants  to  railroads,  by  granting  al- 
ternate sections,  it  prevented  the  acquisition  from  the  govern- 
ment of  large  bodies  of  contiguous  lands,  and  a  similar  policy 
is  pursued  by  the  state  in  disposing  of  state  lands. 

In  Lux  v.  Haggin,  69  Cal.  255  (10  Pac.  674),  at  pages  424, 
425,  it  was  said :"  It  is  to  be  borne  in  mind  that  if  the  court 
had  found  a  watercourse  to,  through  or  past  any  one  of  the 
tracts  described  in  the  complaint,  only  such  of  the  certificates 
of  purchase  would  have  been  admissible  as  showed  the  pur- 
chase of  tracts  so  found  by  the  court  to  be  touched  or  traversed 
by  the  watercourse.  ...  If  we  shall  say  in  general  terms  that 
the  certificates  of  purchase  ought  to  have  been  admitted,  this 
must  be  understood  in  a  limited  sense,  and  to  apply  only  to 
the  certificates  with  reference  to  the  land  described,  as  to  which 
there  is  evidence  that  they  are  lands  by  or  through  which  the 
watercourse  passed.  All  the  sections  or  fractional  sections 
mentioned  in  any  one  certificate  constitute  a  single  tract  of 
land."  .  .  . 

It  is  alleged  in  the  answer  that  said  irrigation  district  "  is  a 
municipal  corporation,  and  is  not  subject  to  be  sued  in  this 
action,"  and  we  are  asked  by  respondent  to  adjudicate  that 
question. 

It  is  true,  as  appellant  suggests,  that  it  cannot  be  considered 
as  affecting  the  order  appealed  from ;  but  as  that  order  must 
be  affirmed,  and  as  the  question  must  again  arise,  unless  aban- 
doned by  the  defendant  corporation,  it  should  be  disposed  of 
now  so  as  to  avoid  another  appeal. 

We  are  not  referred  to  any  case  where  this  question  has  been 
raised  or  decided.  The  fact  that  it  has  not  been  before  made, 
while  by  no  means  conclusive,  is  suggestive  of  the  construction 
given  to  the  statute  by  the  bar. 


UOEHMER  v.  Bia  ROCK  IRRIGATION  DISTRICT.  31 

Section  14  of  the  "Wright  Act"  (Stats.  1887,  p.  35),  after 
giving  express  authority  to  the  board  of  directors  "to  institute 
and  maintain  any  and  all  actions  and  proceedings,  suits  at  law 
or  in  equity,  necessary  or  proper  in  order  to  fully  carry  out 
the  provisions  of  this  act,  or  to  enforce,  maintain,  protect  or 
preserve  any  and  all  rights,  privileges  and  immunities,  created 
by  this  act,  or  acquired  in  pursuance  thereof,"  adds:  "And 
in  all  courts,  actions,  suits  or  proceedings,  the  said  board  may 
sue,  appear  and  defend,  in  person  or  by  attorneys,  and  in  the 
name  of  such  irrigation  district." 

This  language  is  quite  as  effective  to  subject  the  district  to 
an  action  as  the  more  common  expression  "to  sue  and  be 
sued." 

"Appearance"  is  defined  by  Bouvier  to  be  "a  coming  into 
court  as  a  party  to  a  suit,  whether  as  plaintiff  or  defendant ; 
the  formal  proceeding  by  which  a  defendant  submits  himself 
to  the  jurisdiction  of  the  court";  while  the  word  "defend"  is 
defined  in  Black 's  Law  Dictionary  as  follows:  "To  contest  and 
endeavor  to  defeat  a  claim  or  demand  made  against  one  in  a 
court  of  justice." 

It  is  conceded  that  the  state  and  its  public  agencies  cannot 
be  sued  without  express  authority  from  the  state  itself,  and 
that,  as  held  in  the  matter  of  the  bonds  of  the  Madera  Irr. 
Dist.,  92  Cal.  296,  27  Am.  St.  Rep.  106,  28  Pac.  272,  675,  U 
L.  R.  A.  755,  "An  irrigation  district  organized  under  the 
Wright  Act  becomes  a  public  corporation,  and  its  officers  be- 
come public  officers  of  the  state." 

Undoubtedly  a  general  statute  authorizing  individuals  or 
private  corporations  to  sue  or  be  sued  would  not  be  con- 
strued to  include  municipal  corporations ;  but  where,  as  here, 
the  statute  in  question  relates  directly  and  exclusively  to  cor- 
porations formed  under  it,  that  part  relating  to  its  liability 
to  sue  or  be  sued  must  be  determined  by  those  rules  of  con- 
struction intended  to  aid  in  ascertaining  the  intention  of  the 
legislature,  for  whatever  power  it  does  bestow  is  granted  di- 
rectly and  expressly  to  such  corporation. 

If  such  corporations  may  not  be  sued,  no  judgment  can  be 
rendered  against  them  whether  they  appear  and  defend  or  not, 
and  certainly  the  legislature  did  not  intend  that  such  actions 


32  WATER  RIGHTS  AND  IRRIGATION  LAW. 

should  be  profitless  to  the  parties  and  only  profitable  to  the 
attorneys,  and  perhaps  not  even  amusing  to  the  court.     The 
right  to  appear  and  defend  implies  the  liability  to  be  sued. 
The  order  appealed  from  should  be  affirmed. 


What  Land    is  Riparian — Material  Injury  Necessary  to  In- 
junction. 

JONES  et  al.  v.  CONN. 

(39  Or.  30,  87  Am.  St.  Kep.  634,  64  Pac.  855,  54  L.  E.  A.  630.) 
Action  by  George  Jones  and  others  against  George  Conn. 
From  a  decree  enjoining  defendant  from  taking  water  from 
the  ditch  in  controversy  for  irrigation  purposes  so  as  to  ma- 
terially affect  plaintiffs'  rights  as  lower  riparian  owners,  both 
parties  appeal.  Affirmed. 

This  is  a  suit  to  enjoin  the  defendant,  Conn,  from  diverting 
the  waters  of  Chewaucan  river  through  a  ditch  recently  con- 
structed by  him.  The  plaintiffs  are  riparian  proprietors  on 
the  river,  and  the  owners  in  severalty  of  divers  tracts  of  arid 
land,  aggregating  several  thousand  acres.  These  lands  are 
level,  and,  when  irrigated,  very  fertile,  but  valueless  without. 
The  defendant  is  an  upper  riparian  proprietor,  owning  eight 
hundred  and  seventy-five  acres,  through  which  the  river  flows 
a  distance  of  one  and  three-fourths  to  two  miles,  dividing  on 
his  premises  into  two  main  channels,  flowing  northeasterly  and 
southeasterly,  which  in  turn  subdivide  into  numerous  chan- 
nels and  sloughs,  through  each  of  which  the  waters  of  the 
river  have  been  wont  to  flow  from  time  immemorial.  The 
greater  portion  of  defendant's  land  is  elevated  from  seventy- 
five  to  eighty  feet  above  the  river.  Three  hundred  and  twenty 
acres  of  it  are  contiguous  to,  but  acquired  by  different  convey- 
ances from,  land  immediately  bordering  on  the  stream.  In 
the  fall  of  1896  and  spring  of  1897  the  defendant  constructed 
the  ditch  in  question  for  the  purpose  of  irrigating  his  upland, 
and  furnishing  better  power' to  a  grist  mill,  situated  on  the 
river  a  short  distance  below  its  forks,  which  he  had  theretofore 


UONES  v.  CONN.  33 

owned  and  operated  with  water  conveyed  through  a  ditch 
about  half  a  mile  long,  located  on  his  own  premises.  The  new 
ditch  taps  the  river  one  and  one-half  or  two  miles  above  his 
property,  and  has-  a  carrying  capacity  of  about  two  thousand 
five  hundred  inches.  The  upland  he  proposes  to  so  irrigate 
is  somewhat  lower  than  the  bluff  between  it  and  the  river,  and 
slopes  slightly  away  therefrom,  so  that  it  is  contended  that 
any  water  used  thereon  for  irrigation  cannot  find  its  way  by 
percolation  back  into  the  river.  The  object  of  this  suit  is  to 
enjoin  the  defendant  from  using  water  through  this  ditch,  on 
the  theory  that  it  is  a  wasteful  and  unnecessary  means  of  sup- 
plying power  to  his  mill,  and  that  the  land  he  proposes  to 
irrigate  is  nonriparian.  The  defendant  avers  that  all  his  lands 
are  riparian,  and  that,  as  a  riparian  proprietor,  he  is  entitled 
to  two  thousand  six  hundred  and  seventy-five  inches  of  water 
for  domestic,  stock,  irrigating,  and  manufacturing  purposes; 
that  all  of  his  land  is  arid,  and  capable  of  being  irrigated  from 
the  river,  which  carries  a  large  amount  of  water  during  the 
irrigating  season;  that  the  amount  he  proposes  to  take  and 
consume  therefrom  is  reasonably  necessary  for  the  purposes 
indicated,  and  will  not  be  of  any  material  injury  to  the  plain- 
tiffs, or  any  of  them.  The  court  below  found  that  the  defend- 
ant was  entitled  to  take  water  through  the  ditch  in  question, 
but  not  to  use  it  for  the  irrigation  of  lands  contiguous  to,  but 
acquired  by  different  conveyances  from,  land  abutting  directly 
on  the  stream,  when  such  use  will  actually  and  sensibly  af- 
fect the  rights  of  the  plaintiffs  as  riparian  proprietors,  and 
entered  a  decree  perpetually  enjoining  and  restraining  him 
from  diverting  any  of  the  waters  of  the  river  to  irrigate  such 
land,  "to  the  actual  and  perceptible  injury  of  the  plaintiffs  as 
riparian  proprietors  upon  their  riparian  lands."  From  this 
decree  both  parties  appeal. 

BEAN,  C.  J.  (after  stating  the  facts). — This  is  a  contro- 
versy between  riparian  proprietors  upon  a  natural  water- 
course. There  is  virtually  but  one  question  involved  in  the 
case,  and  that  is  whether  the  lands  which  the  defendant  seeks 
to  irrigate  are  riparian  in  character.  It  is  practically  con- 
ceded that  upon  the  commencement  of  the  suit  the  plaintiffs 
had  not  been  substantially  injured  or  damaged  on  account  of 
3 


34  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  use  of  the  water  by  the  defendant,  and,  as  a  consequence, 
are  not  entitled  to  an  injunction  if  the  lands  are  riparian ;  but 
the  contention  is  that  they  are  nonriparian,  and  therefore  the 
plaintiffs  are  entitled  to  an  injunction  restraining  the  use  of 
the  water  thereon  without  proof  of  damage.  It  is  common 
learning  that  every  person  through  whose  premises  a  stream 
of  water  flows  has  a  right  to  its  use  and  enjoyment  as  it  passes 
through  his  land ;  but,  as  all  other  proprietors  have  a  similar 
right,  it  necessarily  follows  that  one  cannot  use  or  divert  the 
water  to  the  injury  of  another.  The  right  of  each  must  be 
exercised  in  subordination  to  that  of  all  the  others.  Within 
these  limits,  each  proprietor  is  entitled  to  such  use  of  the 
stream  as  may  be  conformable  to  the  usages  and  wants  of  the 
community.  It  is  often  said  that  a  riparian  proprietor  has  a 
right,  inseparably  annexed  to  the  soil,  to  have  the  water  of  a 
stream  flow  down  to  his  land  as  it  is  wont  to  run,  undiminished 
in  quantity  and  unimpaired  in  quality ;  and  that,  if  an  upper 
proprietor  takes  it  from  the  stream,  he  must  return  substan- 
tially the  same  quantity  again  before  it  leaves  his  premises. 
This  rule,  however,  is  subject  to  the  limitation  now  well  estab- 
lished that  each  proprietor  is  entitled  to  a  reasonable  use  of 
the  water  for  domestic,  agricultural,  and  manufacturing  pur- 
poses, and  such  use  is  not  to  be  denied  him  on  account  of  the 
loss  necessarily  consequent  upon  its  proper  enjoyment.  In 
short,  he  has  a  right,  in  the  language  of  Vice-Chancellor  Bacon 
in  Earl  of  Sandwich  v.  Great  Northern  Ry.  Co.,  L.  K.  10  Ch. 
D.  707,  712,  "to  make  all  the  use  he  can — to  derive  every  bene- 
fit he  can — from  the  stream,  provided  he  does  not  abstract  so 
much  as  prevents  other  people  from  having  equal  enjoyment 
with  himself";  or,  as  said  by  Lord  Kingsdown  in  Miner  v. 
Gilmour,  12  Moore  P.  C.  131,  156:  "By  the  general  la-.v  ap- 
plicable to  running  streams,  every  riparian  proprietor  has  a 
right  to  what  may  be  called  the  ordinary  use  of  the  water  flow- 
ing past  his  land;  for  instance,  to  the  reasonable  use  of  the 
water  for  his  domestic  purposes  and  for  his  cattle,  and  this 
without  regard  to  the  effect  which  such  use  may  have,  in  case 
of  a  deficiency,  upon  proprietors  lower  down  the  stream.  But, 
further,  he  has  a  right  to  the  use  of  it  for  any  purpose,  or  what 
may  be  deemed  the  extraordinary  use  of  it,  provided  that  he 


JONES  v.  CONN.  35 

does  not  thereby  interfere  with  the  rights  of  other  proprietors, 
either  above  or  below  him.  Subject  to  this  condition,  he  may 
dam  up  the  stream  for  the  purpose  of  a  mill,  or  divert  the 
water  for  the  purpose  of  irrigation.  But  he  has  no  right  to 
interrupt  the  regular  flow  of  the  stream,  if  he  thereby  inter- 
feres with  the  lawful  use  of  the  water  by  other  proprietors, 
and  inflicts  upon  them  a  sensible  injury."  The  right  of  a 
riparian  proprietor  to  the  use  of  the  water  of  a  stream  flow- 
ing through  his  premises,  and  its  limitations,  are  well  ex- 
pressed in  a  Maryland  case,  where  the  court  say:  "The  right 
of  every  riparian  owner  to  the  enjoyment  of  a  stream  of  run- 
ning water  in  its  natural  state  in  flow,  quantity,  and  quality 
is  too  well  established  to  require  the  citation  of  authorities. 
It  is  a  right  incident  and  appurtenant  to  the  ownership  of  the 
land  itself,  and,  being  a  common  right,  it  follows  that  every 
proprietor  is  bound  so  to  use  the  common  right  as  not  to  inter- 
fere with  an  equally  beneficial  enjoyment  of  it  by  others. 
This  is  the  necessary  result  of  the  equality  of  right  among  all 
the  proprietors  of  that  which  is  common  to  all.  As  such 
owner,  he  has  the  right  to  insist  that  the  stream  shall  con- 
tinue to  run  uti  currere  solebat ;  that  it  shall  continue  to  flow 
through  his  land  in  its  usual  quantity,  at  its  natural  place, 
and  at  its  usual  height.  Without  a  grant,  either  express  or 
implied,  no  proprietor  has  the  right  to  obstruct,  diminish,  or 
accelerate  the  impelling  force  of  a  stream  of  running  water. 
Of  course,  we  are  not  to  be  understood  as  meaning  there  can 
be  no  diminution  or  increase  of  the  flow  whatever,  for  that 
would  be  to  deny  any  valuable  use  of  it.  There  may  be,  and 
there  must  be  allowed  to  all  of  that  which  is  common,  a  rea- 
sonable use;  and  such  a  use,  although  it  may,  to  some  extent, 
diminish  the  quantity,  or  affect,  in  a  measure,  the  flow  of 
the  stream,  is  perfectly  consistent  with  the  common  right. 
The  limits  which  separate  the  lawful  from  the  unlawful  use 
of  a  stream  it  may  be  difficult  to  define.  It  is,  in  fact,  im- 
possible to  lay  down  a  precise  rule  to  cover  all  cases,  and 
the  question  must  be  determined  in  each  case,  taking  into 
consideration  the  size  of  the  stream,  the  velocity  of  the  cur- 
rent, the  nature  of  the  banks,  the  character  of  the  soil  and 
a  variety  of  other  facts.  It  is  entirely  a  question  of  degree, 


36  V/ATER  RIGHTS  AND  IRRIGATION  LAW. 

the  true  test  being  whether  the  use  is  of  such  a  character  as 
to  affect  materially  the  equally  beneficial  use  of  the  stream 
by  others."  .  .  . 

For  the  protection  of  the  rights  of  the  several  riparian 
proprietors  it  has  even  been  held  that  a  court  of  equity  may 
in  a  proper  case  apportion  the  flow  of  the  stream,  after  the 
natural  wants  of  the  several  proprietors  have  been  satisfied, 
in  such  a  manner  as  may  seem  equitable  and  just  under  the 
circumstances.  .  .  . 

The  plaintiffs  admit  the  rule  that,  after  the  natural  wants 
of  all  the  riparian  proprietors  have  been  supplied,  each  is 
entitled  to  a  reasonable  use  of  the  water  for  irrigating  pur- 
poses, but  insist  that  the  exercise  of  the  right  must  be  limited  to 
the  tract  of  land  through  which  the  stream  flows  as  first  seg- 
regated and  sold  by  the  government  of  the  United  States, 
and  that,  even  in  such  a  case,  where  there  are  unnatural 
barriers  within  the  tract  which  would  prevent  a  portion  of 
the  land  from  deriving  any  benefit  from  the  flow  of  the 
stream,  the  portion  lying  beyond  the  barrier  should  be  ex- 
cluded. But,  as  we  understand  the  law,  lands  bordering  on 
a  stream  are  riparian,  with  regard  to  their  extent.  After  a 
considerable  search,  we  are  unable  to  find  any  rule  deter- 
mining when  part  of  an  entire  tract  owned  by  one  person 
ceases  to  be  riparian.  The  discussions  in  the  books  are  re- 
stricted to  a  definition  of  riparian  proprietors  and  their  re- 
spective rights.  A  riparian  proprietor  is  one  whose  land  is 
bounded  by  a  natural  stream,  or  through  whose  land  it  flows, 
and  riparian  rights  are  those  which  he  has  to  the  use  of  the 
water  of  the  stream.  They  are  derived  entirely  from  the 
ownership  of  the  land,  and  not  from  its  area  or  the  source 
of  its  title.  .  .  . 

The  right  to  use  the  water  belongs  to  the  owner  of  the  land, 
and  the  extent  of  its  exercise  is  not  to  be  determined  by  the 
area  or  contour  of  his  land,  but  by  its  effect  upon  other  ripa- 
rian proprietors. 

A  reference  to  a  few  of  the  adjudged  cases  will  illustrate 
this  principle.  In  Norbury  v.  Kitchin,  9  Jur.  (N.  S.)  132, 
the  defendant,  a  riparian  proprietor,  erected  pumps  and  con- 
duit pipes  to  conduct  the  water  of  a  stream  across  a  hill  into 
a  reservoir,  to  await  the  use  of  a  house  built  by  him  on  prop- 


JONES  v.  CONN.  37 

crty  he  had  acquired  subsequently  to  his  riparian  property. 
It  was  held  that  the  question  whether  his  use  of  the  stream 
was  reasonable  under  all  the  circumstances  was  properly  left 
to  the  jury.  In  one  of  the  opinions  it  is  said:  "The  defend- 
ant has  built  himself  a  house  on  the  side  of  a  hill,  and  he 
formed  a  reservoir  to  supply  his  house  with  water  from  the 
stream.  This  exercise  of  his  right  seemed  somewhat  strong, 
and  the  plaintiff's  counsel  were  at  one  time  inclined  to  rely 
upon  the  distance  of  the  house  from  the  stream,  but  probably, 
on  reflection,  they  found  it  immaterial.  The  real  question 
in  the  case  is  whether  a  man  who  has  three  hundred  and 
twenty-one  thousand  gallons  of  water  coming  down  to  him, 
can  complain  if  ten  thousand  are  taken  before."  Elliot  v. 
Railroad  Co.,  10  Gush.  191,  was  an  action  to  recover  dam- 
ages for  the  diversion  of  water  by  a  railroad  company,  an 
upper  proprietor,  for  the  use  of  its  locomotives,  engines,  and 
other  similar  purposes.  It  was  contended  at  the  trial  that, 
if  the  jury  were  satisfied  of  the  existence  of  the  stream  and 
the  diversion  of  the  water  by  the  defendant,  plaintiff  was 
entitled  to  a  verdict  for  nominal  damage,  without  proof  of 
actual  damage ;  but  the  presiding  judge  instructed  the  jury 
that,  unless  plaintiff  suffered  actual  perceptible  damage  in 
consequence  of  the  diversion,  the  defendant  was  not  liable 
in  the  action,  and  this  direction  was  held  to  be  right  by 
the  entire  court.  In  the  course  of  the  opinion,  Mr.  Chief 
Justice  Shaw  says:  "The  right  to  flowing  water  is  now  well 
settled  to  be  a  right  incident  to  property  in  the  land.  It 
is  a  right  publici  juris,  of  such  character  that,  whilst  it  is 
common  and  equal  to  all  through  whose  land  it  runs,  and  no 
one  can  obstruct  or  divert  it,  yet,  as  one  of  the  beneficial  gifts 
of  providence,  each  proprietor  has  a  right  to  a  just  and  rea- 
sonable use  of  it,  as  it  passes  through  his  land;  and,  so  long 
as  it  is  not  wholly  obstructed  or  diverted,  or  no  larger  appro- 
priation of  the  water  running  through  it  is  made  than  a  just 
and  reasonable  use,  it  cannot  be  said  to  be  wrongful  or  in- 
jurious to  a  proprietor  lower  down.  What  is  such  a  just 
and  reasonable  use  may  often  be  a  difficult  question,  depend- 
ing on  various  circumstances.  To  take  a  quantity  of  water 
from  a  large  running  stream  for  agriculture  or  manufactur- 
ing purposes  would  cause  no  sensible  or  practicable  diminution 


38  WATER  RIGHTS  AND  IRRIGATION  LAW. 

of  the  benefit  to  the  prejudice  of  a  lower  proprietor;  whereas 
taking  the  same  quantity  from  a  small  running  brook  passing 
through  many  farms  would  be  of  great  and  manifest  injury 
to  those  below,  who  need  it  for  domestic  supply,  or  watering 
cattle;  and  therefore  it  would  be  an  unreasonable  use  of  the 
water,  and  an  action  would  lie  in  the  latter  case,  and  not  in 
the  former.  It  is,  therefore,  to  a  considerable  extent,  a  ques- 
tion of  degree.  Still,  the  rule  is  the  same,  that  each  pro- 
prietor has  a  right  to  a  reasonable  use  of  it,  for  his  own 
benefit,  for  domestic  use,  and  for  manufacturing  and  agricul- 
tural purposes."  In  Garwood  v.  New  York  etc.  R.  R.  Co., 
83  N.  Y.  400,  38  Am.  Rep.  452,  a  riparian  proprietor  was 
allowed  to  maintain  an  action  to  recover  damages  against  a 
railroad  company  for  diverting  the  waters  of  a  stream  and 
conveying  them  by  pipes  to  reservoirs,  where  its  locomotives 
were  supplied  with  water,  the  proof  showing  that  the  water 
so  diverted  was  sufficient  ''to  perceptibly  reduce  the  volume 
of  water"  in  the  stream,  and  to  "materially  reduce  or  dimin- 
ish the  grinding  power  of  plaintiff's  mill,"  in  consequence 
of  which  he  sustained  damage  to  a  substantial  amount.  In 
Gillis  v.  Chase,  67  N.  II.  161,  68  Am.  St.  Rep.  645,  31  Atl.  18, 
it  is  held  that  a  riparian  owner  is  not  liable  for  a  reasonable 
use  of  water  passing  his  land,  whether  for  his  own  purposes 
or  for  sale  to  others,  and  the  reasonableness  of  his  use  is  a 
question  of  fact.  In  this  case  it  is  said:  "Each  riparian 
proprietor  having  the  right  to  a  just  and  reasonable  use  of 
the  water  as  it  passes  through  and  along  his  land,  it  is  only 
when  he  transcends  his  right  by  an  unreasonable  and  unau- 
thorized use  of  it  that  an  action  will  lie  against  him  by 
another  proprietor  whose  common  and  equal  right  to  the 
flow  and  enjoyment  of  the  water  is  thereby  injuriously  af- 
fected. And  as  the  reasonableness  of  the  use  is,  to  a  consid- 
erable extent,  a  question  of  degree,  and  largely  dependent 
on  the  circumstances  of  each  case,  it  is  to  be  judged  of  by 
the  jury,  and  must  be  determined  at  the  trial  term  as  a  mixed 
question  of  law  and  fact."  In  Fifield  v.  Spring  Valley 
Waterworks,  130  Cal.  552,  62  Pac.  1054,  it  was  held  by  the 
supreme  court  of  California  that  a  lower  riparian  proprietor, 
who  is  not  injured  by  the  diversion  of  water  by  a  corporation 
conducting  and  carrying  on  the  business  of  supplying  the 


JONES  i>.  CONN.  39 

inhabitants  of  a  city  with  water,  cannot  restrain  such  diver- 
sion. In  Ulbricht  v.  Eufaula  Water  Co.,  86  Ala.  587,  11  Am. 
St.  Rep.  72,  6  South.  78,  4  L.  R.  A.  572,  a  riparian  proprietor 
filed  a  bill  to  enjoin  the  diversion  of  water  from  the  stream 
by  an  upper  riparian  proprietor,  a  water  company,  for  the 
use  of  its  waterworks,  constructed  to  supply  the  inhabitants 
of  a  city  with  water.  The  testimony  in  the  case  established 
that  the  diversion  of  water  for  the  purpose  mentioned  would 
result  in  a  sensible  diminution  in  the  flow  of  the  stream  itself 
in  the  dry  season  or  summer  months,  but  that  the  complain- 
ant was  making  no  particular  use  of  the  stream,  and  therefore 
suffered  no  special  damage  by  the  act  of  the  defendant;  and 
it  was  held  that,  as  the  defendant  was  taking  the  water  for 
the  purpose  of  supplying  the  wants  of  a  neighboring  town, 
and  not  returning  it  to  its  natural  channel,  the  plaintiff  was 
entitled  to  an  injunction  in  vindication  of  his  rights,  without 
any  special  proof  of  damages ;  but,  as  he  was  not  making  any 
particular  use  of  the  water,  the  injunction  should  be  so 
framed  as  only  to  restrain  its  use  "to  the  sensible  injury  or 
damage  of  the  complainant  for  any  purpose  for  which  he 
may  now  or  in  the  future  have  use  for  it." 

It  is  apparent,  therefore,  that  the  rule,  so  often  stated  and 
reiterated  in  the  books,  that  a  riparian  proprietor  is  entitled 
to  have  the  entire  flow  of  the  stream  come  down  to  his  premises, 
is  subject  to  the  important  limitation  that  an  upper  riparian 
proprietor  may  make  such  a  use  thereof  as  does  not  work  any 
actual,  material,  and  substantial  damage  to  the  common  right 
which  each  proprietor  has;  and,  whether  a  proposed  use  is 
of  the  character  referred  to,  and  therefore  reasonable,  does 
not  depend  so  much  upon  the  area  of  the  land  of  the  offending 
proprietor,  or  the  place  of  the  use,  as  upon  the  effect  it  has 
upon  the  correlative  rights  of  the  other  proprietors.  Under 
this  doctrine  the  defendant  was  not  a  wrongdoer  when  he 
used  the  waters  of  the  stream  for  the  purpose  of  irrigation, 
nor  does  the  fact  that  his  land  lies  above  the  level  thereof, 
so  that  it  cannot  be  irrigated  by  means  of  ditches  wholly  on 
his  own  premises,  affect  his  right  to  the  use  of  the  water 
(Char nock  v.  Higuerra,  111  Cal.  473,  52  Am.  St.  Rep.  195, 
44  Pac.  171,  32  L.  R.  A.  190),  although  it  might  have  a  ma- 
terial bearing  upon  the  reasonableness  of  the  use,  if  that 


40  WATER  RIGHTS  AND  IRRIGATION  LAW. 

question  was  here  for  decision.  (Gould  on  Waters,  3d  ed., 
sec.  217.)  But  there  is  no  reason  shown  by  this  record  why 
the  defendant  should  be  confined  in  the  use  of  the  water  to 
any  particular  portion  of  his  land.  The  amount  of  water 
taken  and  used  by  him  before  the  trial  was  not  sufficient  to 
materially  injure  the  plaintiffs,  or  to  interfere  in  any  sub- 
stantial way  with  their  rights  as  riparian  proprietors.  There 
seems  to  have  been  abundant  water  left  in  the  stream  after 
his  diversion  for  the  use  of  all  the  other  riparian  proprietors. 
There  is  some  conflict  in  the  authorities  as  to  whether  a  ripa- 
rian proprietor  can  enjoin  the  use  of  water  for  the  irrigation 
of  nonriparian  lands  without  showing  damage  (Modoc  etc. 
1  Livestock  Co.  v.  Booth,  102  Cal.  151,  36  Pac.  431 ;  Gould  v. 
Eaton,  117  Cal.  539,  49  Pac.  577,  38  L.  R.  A.  181;  Fifield 
v.  Spring  Valley  Waterworks,  supra)  ;  but  it  is  clear  that 
a  court  of  equity  will  not  restrain  the  use  of  water  by  a  ripa- 
rian proprietor  to  irrigate  his  lands  unless  it  is  shown  that 
such  use  will  injure  the  other  riparian  proprietors.  (Gould 
on  Waters,  3d  ed.,  sec.  214.)  The  plaintiffs,  therefore,  were 
not  entitled  to  an  injunction  restraining  the  defendant  from 
using  the  waters  of  the  stream  for  the  purpose  of  irrigation, 
because  such  use  was  no  injury  to  them.  But,  as  the  de- 
fendant has  set  up  in  his  answer,  and  attempted  to  maintain 
by  his  testimony,  the  absolute  right  to  sufficient  water  to 
irrigate  his  land,  regardless  of  the  effect  it  may  have  upon 
the  other  proprietors,  the  plaintiffs  are  entitled  to  such  a 
decree  as  will  prevent  his  use  from  ripening  into  an  adverse 
title.  (Gould  on  Waters,  3d  ed.,  p.  214;  Kin.  Irr.,  p.  329; 
Ulbricht  v.  Water  Co.,  supra;  Newhall  v.  Irenson,  8  Gush. 
595,  54  Am.  Dec.  790.) 

It  is  suggested  that  the  court  ought  to  ascertain  and  de- 
termine the  rights  of  the  respective  parties,  and  fix  them  in 
the  decree,  so  that  hereafter  there  may  be  no  controversy  con- 
cerning the  matter.  In  the  very  nature  of  things,  however, 
it  is  impossible  in  a  case  of  this  character  to  make  such  a 
decree.  The  rights  of  the  several  riparian  proprietors  are 
equal,  each  being  entitled  to  but  a  reasonable  use  of  the  water 
for  irrigating  purposes,  and  what  constitutes  such  use  must 
necessarily  depend  upon  the  season,  the  volume  of  water  in 
the  stream,  the  area  and  character  of  the  land  which  each 


GOULD  v.  STAFFORD.  41 

riparian  proprietor  proposes  to  irrigate,  and  many  other  cir- 
cumstances; so  that  it  seems  to  us  there  is  no  basis  upon 
which  the  court  could  frame  any  other  decree  than  one  enjoin- 
ing and  restraining  the  defendant  from  diverting  the  water 
from  the  stream  to  the  substantial  injury  of  the  present  or 
future  rights  of  the  plaintiffs,  and,  as  the  decree  of  the  court 
below  is  to  that  effect,  it  will  be  affirmed. 


/^  V 


Riparian  Rights  —  Severance  from  Land  —  Irrigation  —  Grant 
of  Riparian  Rights. 

/  $"/ 
FRED  S.  GOULD,  Respondent,  v.  0.  A.  STAFFORD,  Appel- 

lant. 
(91  Cal.  146,  27  Pac.  543.) 

VANCLIEF,  C.  —  Action  for  damages  resulting  from  the 
alleged  diversion  of  water  by  defendant  from  Montecito  creek, 
in  the  county  of  Santa  Barbara,  and  for  a  perpetual  injunc- 
tion against  such  diversion  in  the  future.  Both  parties  claim 
to  be  riparian  proprietors  upon  both  sides  of  the  creek,  the 
defendant's  land  being  about  one  mile  above  that  of  the 
plaintiff. 

The  complaint  charges  that  in  January,  1882,  by  means 
of  a  dam  across  a  main  branch  of  the  creek  (the  Cold  Spring 
branch),  and  certain  flumes  and  ditches  erected  and  main- 
tained by  the  defendant,  he  "prevented  a  portion  of  the 
waters  naturally  flowing  in  said  creek  from  flowing  down  to  and 
reaching  plaintiff's  land  and  premises;  that  defendant  wrong- 
fully and  unlawfully  has  continuously  since  said  time  appro- 
priated and  taken  for  his  own  use  a  large  portion  of  the 
waters  naturally  flowing  in  said  stream  as  aforesaid,  and 
has  wasted  said  water  and  applied  the  same  to  unlawful 
purposes,  and  prevented  the  entire  quantity  so  taken  from 
again  returning  to  the  natural  bed  or  channel  of  said  Monte- 
cito creek  or  any  of  its  branches,  and  said  waters  have,  by 
means  of  said  unlawful  diversion,  been  wasted  and  lost,  and 
have  not  reached  the  land  of  plaintiff";  whereby  plaintiff's 


42  WATER  RIGHTS  AND  IRRIGATION  LAW. 

land  has  been  deprived  of  the  flow  of  the  water  and  of  the 
use  thereof  for  necessary  or  any  purposes,  and  in  the  sea- 
sons of  scarcity  of  water  the  bed  of  said  creek,  within  the 
premises  of  plaintiff,  has  become  dry  for  a  long  period,  and 
plaintiff  has  been  deprived  of  the  use  of  any  water  of  said 
creek  for  domestic  or  other  reasonable  and  lawful  uses,  to 
the  damage  of  plaintiff  in  the  sum  of  five  thousand  dollars, 
and  that  defendant  threatens  to  continue,  and  unless  re- 
strained will  continue,  such  unlawful  diversion  to  the  lasting 
and  irreparable  injury  of  plaintiff  and  his  land. 

The  amended  answer  of  the  defendant,  on  which  the  case 
was  tried,  denies  that  the  waters  of  said  creek  naturally  flow 
through  plaintiff's  land  later  than  the  month  of  June,  except 
in  extraordinarily  wet  seasons,  and  specifically  denies  all  the 
wrongful  acts  charged  in  the  complaint. 

The  answer  alleges  the  defendant's  riparian  ownership  of 
land  as  above  stated,  and  that  on  November  19,  1881,  the 
defendant  leased  to  Ah  Young,  a  Chinaman,  a  part  of  his 
riparian  land  on  the  west  side  of  the  creek,  and  sets  out  the 
lease  as  follows: 

"Agreement  in  consideration  of  the  sum  of  one  hundred 
dollars  ($100)  per  annum,  to  be  paid  semi-annually  in  ad- 
vance. I  agree  to-  lease  to  Ah  Young  my  field  of  eight  (8) 
acres,  more  or  less,  lying  on  the  west  side  of  Cold  Spring 
Creek,  formerly  known  as  the  Sanchez  land,  for  the  term 
of  five  (5)  years  from  date  of  this  agreement;  I  further- 
more agree  to  build  a  six-inch  flume  to  carry  water  from  the 
creek  to  the  land,  he,  Ah  Young,  agreeing  to  keep  said  flume 
and  the  fence  now  about  the  land  in  good  repair  as  they  are 
at  present. 


"Montecito,  S.  B.  Co.,  Cal.,  November  9,  1881." 
The  answer  further  alleges  that  defendant  did  not  agree 
to  furnish  the  lessee  any  particular  quantity  of  water,  or 
any  water,  except  such  as  the  lessee  was  entitled  to  by  the 
terms  of  the  lease,  viz.,  so  much  as  was  appurtenant  to  the 
land  leased  by  reason  of  its  being  riparian  to  the  creek  ;  that 
Ah  Young  took  possession  of  the  leased  premises  on  Novem- 


GOULD  v.  STAFFORD.  43 

ber  9,  1881,  and  he  and  hig  assigns  continued  to  occupy  the 
premises  under  the  lease  until  November  9,  1886. 

It  is  also  alleged  in  the  answer  "that  no  notice  was  given 
to  defendant  before  the  commencement  of  this  action  to  abate 
any  dam  in  said  creek,  or  that  the  waters  of  said  creek  which 
flowed  into  said  flume  were  being  or  had  been  wasted  or 
misapplied." 

As  to  the  alleged  riparian  ownership  of  defendant,  and  the 
lease  and  possession  of  the  lessee  under  it,  the  court  found 
the  answer  to  be  true.  As  to  the  alleged  want  of  notice  to 
defendant  there  is  no  finding.  As  to  damages,  the  plaintiff 
withdrew  all  claim  except  for  nominal  damages,  and  the  court 
found  only  nominal  damages.  But  upon  all  other  material 
issues  the  court  found  for  the  plaintiff,  and  gave  judgment 
against*  defendant  for  nominal  damages,  and  costs  assessed 
at  $263.60,  and  perpetually  enjoined  and  commanded  him, 
substantially  as  follows : 

1.  From  wasting,  or  permitting  to  be  wasted,  any  portion 
of  the  waters  of  said  creek  or  the  branches  thereof; 

2.  From  diverting  or  using,  or  permitting  to  be  diverted 
or  used,  any  of  said  waters  upon  any  other  land  than  the 
riparian  land  of  the  defendant; 

3.  From  diverting,  or  permitting  to  be  diverted,  for  the 
purposes  of  irrigation,  all  the  waters  of  said  creek  or  any  of 
its  branches,   "at  any  season  of  the  year  for  purposes  of 
irrigation,    and  from   interrupting  or   interfering  with   the 
said  supply  of  water  so  enjoyed  by  the  plaintiff  for  domestic 
and  household  purposes,  and  for  watering  his  stock,  and  from 
permitting  the  same  to  continue  unrestored,  and  from  per- 
mitting to  continue  on  his  land  or  at  the  dam  erected  by  him 
any  means  or  appliances  whereby  the  said  uses  of  plaintiff 
therein  are  or  may  be  diverted  or  interfered  with." 

4.  In  case  the  defendant  should  divert  and  use  a  portion 
of  the  waters  of  said  stream  for  the  purpose  of  irrigating  his 
riparian  land,  he  is  commanded,  by  "substantial  and  proper 
artificial  means  and  methods, ' '  to  conduct  back  to  the  channel 
of  the  creek,  above  the  lands  of  plaintiff,  all  surplus  water 
not  necessary  for  irrigation    and  not  being  used  therefor,  so 
that  the  same  may  be  restored  to  the  natural  channel  above 
the  lands  of  plaintiff  without  waste  or  unnecessary  diminution. 


44  WATER  RIGHTS  AND  IRRIGATION  LAW. 

5.  It  is  adjudged  that  the  use,  by  the  defendant,  of  the 
waters  of  said  stream  for  the  purpose  of  irrigation  is  subordin- 
ate to  the  right  of  the  plaintiff  to  use  the  same  for  domestic 
and  household  purposes  and  the  watering  of  stock. 

The  case  was  here  on  a  former  appeal  (77  Cal.  66,  18  Pac. 
879),  but  the  questions  now  presented  are  different  from  those 
decided  on  the  former  appeal. 

The  defendant  appeals  from  the  judgment,  and  also  from 
an  order  denying  his  motion  for  new  trial. 

1.  The  appellant  contends  that  the  evidence  does  not  justify 
the  finding  that  the  defendant  by  any  means  diverted,  mis- 
applied, or  wasted  any  water  from  the  Cold  Spring  branch 
of  the  creek;  or  that  he  caused,  authorized,  or  promoted  any 
such  misapplication  or  waste  by  others. 

The  evidence  tends  to  prove  no  other  wrongful  or  excessive 
diversion  than  that  from  the  Cold  Spring  branch  through 
the  flume  to  the  garden  leased  to  Ah  Young;  and  the  only 
evidence  claimed  to  have  any  tendency  to  prove  that  defend- 
ant caused  or  authorized  such  diversion,  or  any  waste  or  mis- 
application of  the  water,  is,  that  he  executed  the  lease  to  Ah 
Young,  and  constructed  the  flume,  according  to  the  terms  of 
the  lease;  and  also  that  he  employed  one  Chico  to  construct 
the  flume  and  agreed  that  Chico  should  have  a  partial  use  of 
the  flume,  to  convey  water  to  his  land,  situate  below  the  Chi- 
nese garden,  in  consideration  of  his  work  upon  the  flume.  The 
flume  tapped  the  stream  above  defendant's  land,  and  defend- 
ant acquired  the  right  of  way  for  it  upon  the  land  of  others. 
There  never  was  any  permanent  dam  across  the  stream  to 
divert  the  water  into  the  flume.  In  the  early  part  of  each 
season,  when  the  stream  carried  a  large  quantity  of  water, 
very  little,  if  any,  obstruction  was  required  to  turn  sufficient 
water  into  the  flume  to  fill  it.  A  few  rocks  thrown  into  the 
stream  were  then  sufficient  to  turn  water  into  the  flume  to  its 
full  capacity.  Later  in  the  season,  as  the  water  in  the  stream 
diminished,  the  obstruction  was  increased  until  the  lowest 
stage  of  the  water,  when  a  dam  composed  of  stones,  brush, 
and  mud  was  extended  entirely  across  the  stream.  This  dam 
was  washed  away  in  the  winter  or  spring  of  each  year. 

The  defendant  testified  that  the  dam,  and  obstructions  by 
which  the  water  was  turned  into  the  ditch,  were  annually  con- 


GOULD  v.  STAFFORD.  45 

structed  by  the  lessee  of  the  Chinese  garden  and  Chico; 
and  that  he  (defendant)  neither  assisted  in  their  construc- 
tion nor  directed  or  advised  as  to  the  manner  or  extent  thereof, 
nor  as  to  the  quantity  of  water  to  be  diverted  thereby. 
This  testimony  is  corroborated  by  that  of  other  witnesses, 
and  there  is  no  evidence  to  the  contrary.  Nor  is  there  any 
evidence  tending  to  prove  that  Chico  was  the  agent  or  servant 
of  the  defendant  for  any  other  purpose  than  the  construction 
of  the  flume,  or  that  defendant  ever  controlled,  aided,  or  ad- 
vised Chico  in  regard  to  diverting  or  using  the  water  of  the 
stream.  It  appears  that  Chico  extended  the  flume  from  the 
Chinese  garden  to  his  place  lower  down  the  creek,  where  he 
irrigated  a  strawberry-bed  and  an  orchard  of  pear  trees;  but 
there  is  no  evidence  tending  to  prove  whether  or  not  he  owned 
the  land  thus  occupied  and  irrigated  by  him,  or  whether  it 
was  riparian  to  the  creek,  or  how  much  water  he  used.  Upon 
cross-examination  of  Packard,  the  principal  witness  for  plain- 
tiff, defendant's  counsel  asked  him:  What  proportion  of  the 
water  flowed  into  the  flume  that  Chico  used?  This  question 
was  objected  to  by  plaintiff's  counsel  as  irrelevant  and  im- 
material, and  the  court  sustained  the  objection.  The  defend- 
ant also  testified  that  he  was  never  notified  before  the  com- 
mencement of  this  action  that  more  water  was  being  diverted 
by  means  of  the  dam  and  flume  than  his  lessee  and  Chico 
were  entitled  to  divert,  nor  that  the  water  diverted  by  them 
was  misapplied  or  wasted,  and  his  testimony  in  this  respect 
was  not  disputed. 

There  is  no  question  that  the  Chinese  garden  was  riparian 
to  the  creek,  and  that  the  owner  thereof,  or  his  lessee,  was 
entitled  to  such  reasonable  use  of  the  waters  of  the  creek  to 
irrigate  the  same  as  was  consistent  with  the  rights  of  other  ri- 
parian owners.  The  evidence  shows  that  the  quantity  of  water 
that  might  be  so  used  at  any  given  time  depended  upon  the 
stage  of  the  water  in  the  creek,  which  varied  in  different  years 
as  well  as  at  different  seasons  of  the  same  year.  It  follows 
that  defendant  had  a  perfect  right  to  construct  a  flume  to 
convey  water  from  the  stream  to  his  land,  for  his  own  use  or 
for  the  use  of  his  lessee,  of  sufficient  capacity  to  carry  all  the 
water  that  he  or  his  lessee  might  be  entitled  to  use  at  any 
season  of  any  year.  The  mere  capacity  of  the  flume  did  not 


46  WATER  RIGHTS  AND  IRRIGATION  LAW. 

concern  other  riparian  owners,  as  they  could  object  to  only 
an  unlawful  or  excessive  use  of  it.  The  flume  was  not  a 
nuisance  per  se;  and  after  the  defendant  leased  it,  he  had  no 
more  power  or  right  to  control  the  use  of  it  by  the  lessee, 
than  he  had  to  control  the  use  of  the  land  and  other  fixtures 
leased.  The  lessee  alone  was  responsible  for  his  wrongful 
use  of  it  by  which  others  were  injured.  "A  landlord  is  not 
responsible  to  other  parties  for  the  misconduct  or  injurious 
acts  of  his  tenants  to  whom  his  estate  has  been  leased  for  a  law- 
ful and  proper  purpose,  when  there  is  no  nuisance  or  illegal 
structure  upon  it  at  the  time  of  the  lease.  (Kalis  v.  Shattuck, 
69  Cal.  593,  58  Am.  St.  Rep.  568,  11  Pac.  346,  and  authorities 
cited.)  The  relation  of  Chico  to  the  defendant,  after  the 
flume  was  constructed,  was  either  that  of  lessee  or  licensee 
of  the  flume  alone,  in  consideration  of  his  labor  in  construct- 
ing it;  and  since  the  defendant  neither  authorized  nor  par- 
ticipated in  a  wrongful  use  of  the  flume  by  Chico,  he  was  not 
liable,  unless  the  lease  or  license  contemplated  or  necessarily 
involved  a  nuisance  or  wrongful  use.  (Gwathney  v.  Little 
Miami  R.  R.  Co.,  12  Ohio  St.  92 ;  Wood  on  Landlord  and  Ten- 
ant, sec.  539.)  As  the  flume  was  not  a  nuisance  per  se,  and 
was,  unquestionably,  adapted  to  a  lawful  use,  there  can  be  no 
presumption  against  the  defendant,  in  the  absence  of  evi- 
dence that  he  intended  or  contemplated  an  unlawful  use  of  it 
by  his  lessee  or  licensee. 

For  the  reasons  above  stated,  I  think  the  finding  under 
consideration  is  not  justified  by  the  evidence. 

2.  Appellant's  counsel  further  contends  that  the  twelfth 
finding  is  not  justified  by  the  evidence.  That  finding  is  to 
the  effect  that,  by  the  diversions  of  the  waters  complained  of, 
"the  plaintiff  has  suffered  material  damage,  and  the  rights 
of  plaintiff  as  a  riparian  proprietor  have  been  infringed  and 
injured,  and  are  threatened  with  further  irreparable  injury, 
as  far  as  said  riparian  rights  are  concerned." 

In  support  of  this  point  it  is  claimed  that  the  evidence 
shows  that  plaintiff  had  no  riparian  rights  that  could  have 
been  infringed  or  injured;  that  prior  to  plaintiff's  pur- 
chase of  the  land  described  in  his  complaint  as  to  which  he 
claims  riparian  rights,  his  grantors  had  granted  to  Montecito 


GOULD  v.  STAFFORD.  47 

"Water  Company  (a  California  corporation)  all  riparian  rights 
to  water  appurtenant  to  or  parcel  of  said  land,  in  considera- 
tion of  certain  shares  of  stock  in  that  corporation,  which 
shares  of  stock  entitled  the  holder  thereof  to  a  certain  quantity 
of  water  in  proportion  to  the  number  of  shares,  to  be  con- 
veyed to  the  land  through  pipes  or  aqueducts  by  the  corpora- 
tion; and  that,  during  the  time  that  defendant  is  alleged  to 
have  diverted  water  from  the  creek,  the  Montecito  Water  Com- 
pany, by  virtue  of  that  grant,  was  diverting  water  from  the 
same  stream,  and  conveying  such  portion  of  it  to  plaintiff's 
land  as  plaintiff  was  entitled  to  in  consideration  of  the  grant. 

To  prove  this  alleged  grant,  the  defendant  put  in  evidence 
a  long  and  complicated  written  agreement  between  riparian 
proprietors  on  the  creek  (twenty-three  in  number,  including 
plaintiff's  grantors),  of  the  first  part,  and  the  Montecito 
Water  Company,  of  the  second  part.  Among  other  things, 
this  agreement  purports  to  be  a  grant  by  the  parties  of  the 
first  part  to  the  Montecito  Water  Company  of  all  the  rights 
of  the  grantors  to  the  waters  of  the  creek  for  the  consideration 
above  stated. 

In  addition  to  this,  the  evidence  tended  to  prove  that  the 
plaintiff  regarded  the  agreement  as  valid  and  binding  upon 
him;  that  as  successor  to  his  vendors  he  had  applied  to  the 
corporation  to  have  their  stock  transferred  to  him,  and  that  it 
had  been  so  transferred  on  the  books  of  the  corporation;  and 
that  he  had  received  on  his  land  water  from  the  corporation, 
for  domestic  and  other  uses,  during  the  time  he  complains  of 
having  been  deprived  of  water  by  tlie  defendant ;  but  whether, 
during  all  that  time,  he  received  from  the  corporation  as  much 
water  as  he  was  entitled  to  by  the  agreement  does  not  clearly 
appear. 

The  agreement  purports  to  be  a  substitute  for  a  lost  agree- 
ment, to  which  it  refers,  and  in  some  undefined  respects  to  be 
different  from  the  lost  agreement;  besides,  it  is  not  clear  that 
all  the  parties  to  the  lost  agreement  are  parties  to  the  substi- 
tuted agreement.  It  is  also  quite  apparent  upon  the  face  of 
the  agreement  that  in  order  to  construe  it  and  determine  its 
effect,  if  any  effect  it  can  have  in  this  action,  it  will  be  neces- 
sary to  consider  the  circumstances  under  which  it  was  exe- 


48  WATER  RIGHTS  AND  IRRIGATION  LAW. 

cuted,  and  the  acts  of  the  parties  under  it,  of  which  there  was 
not  sufficient  evidence  upon  the  trial.  (Gould  on  Waters, 
sec.  319.) 

In  view  of  the  record  here,  I  think  it  cannot  be  said  that 
the  evidence  does  not  justify  the  finding  that  the  plaintiff  has 
riparian  rights  which  were  infringed  by  the  diversions  of 
water  complained  of,  or  that  the  court  improperly  declined 
to  give  to  the  agreement  above  referred  to,  as  presented  on  the 
trial,  the  effect  claimed  for  it  by  counsel  for  appellant,  al- 
though it  may  turn  out,  upon  a  proper  construction  of  that 
agreement  (which  is  not  attempted  here),  in  the  light  of  all 
the  circumstances  which  may  be  lawfully  considered  as  aids 
to  such  construction,  that  the  agreement  may  have  the  effect 
claimed  for  it  by  counsel  for  appellant ;  and  for  the  purposes 
of  a  new  trial,  which  must  be  granted  upon  other  grounds, 
it  is  proper  to  pass  upon  some  of  the  questions  of  law  dis- 
cussed by  counsel  relating  to  the  grant  of  riparian  water 
rights,  and  the  effect  thereof. 

The  right  of  a  riparian  proprietor  to  the  flow  of  a  stream 
of  water  over  his  land  is  an  incident  of  his  property  in  the 
land,  is  annexed  to  the  land,  and  considered  part  and  parcel 
of  it  (Civ.  Code,  sec.  662;  St.  Helena  Water  Co.  v.  Forbes,  62 
Cal.  182,  45  Am.  Rep.  659),  but  may  be  severed  or  "segre- 
gated" from  the  land  by  grant,  by  condemnation,  or  by  pre- 
scription. (Alia  Land  &  Water  Co.  v.  Hancock,  85  Cal.  219, 
20  Am.  St.  Rep.  217,  24  Pac.  645;  Alhambra  etc.  Water  Co. 
v.  Mayberry,  88  Cal.  69,  25  Pac.  1101;  Washburn  on  Ease- 
ments, 12,  385;  Angell  on  Watercourses,  sees.  96,  141,  146.) 
If,  therefore,  the  grantors  of  the  plaintiff,  while  they  owned 
the  land,  granted  to  the  corporation  (Montecito  Water  Com- 
pany), "its  successors  and  assigns,"  all  or  any  portion  of  their 
riparian  rights  to  the  waters  of  Montecito  creek,  they  thereby, 
to  the  extent  of  such  grant,  severed  from  the  land  their  ripa- 
rian rights,  and  disabled  themselves  to  grant  such  rights  to  the 
plaintiff;  and  consequently  their  grant  of  the  land  to  the 
plaintiff  did  not  pass  the  riparian  rights  theretofore  granted 
to  the  Montecito  Water  Company,  without  which  the  plaintiff 
is  not  entitled  to  complain  that  those  rights  have  been  in- 
fringed by  the  defendant.  In  other  words,  the  plaintiff  is  not 


MORTON  v.  OREGON  SHORT  LINE  RY.  Co.  49 

entitled  to  maintain  an  action  for  the  protection  of  rights 
which  he  has  not. 

It  is  suggested,  however,  that  even  in  this  supposed  hypo- 
thetical case  the  plaintiff  would  have  a  reversionary  right  to 
be  protected  against  the  acquisition  by  defendant  of  a  right  by 
prescription.  But  this  would  depend  upon  the  terms  and 
conditions  of  the  grant  to  the  Montecito  Water  Company.  If 
that  grant  is  only  for  a  limited  term,  or  is  upon  a  condition 
subsequent  by  which  it  may  be  terminated,  the  plaintiff  would 
be  entitled  to  maintain  an  action  to  protect  his  reversionary 
right.  But  if  the  grant  is  absolute  and  unconditional,  the 
plaintiff  has  no  reversionary  interest.  That  such  a  grant  may 
be  absolute  and  unconditional  appears  by  the  authorities  above 
cited.  But  for  reasons  above  stated,  it  is  not  intended  to 
intimate,  in  this  opinion,  what  construction  should  be  given 
to  the  written  agreement  above  referred  to  in  any  respect. 

THE  COURT. — For  the  reasons  given  in  the  foregoing 
opinion,  the  judgment  and  order  are  reversed,  and  the  cause 
remanded  for  a  new  trial. 


Restoration  of  Stream  to  Original  Bed — Alteration  of 
Channel. 


MORTON  v.  OREGON  SHORT  LINE  RY.  CO. 

(48  Or.  444,  120  Am.  St.  Eep.  827,  87  Pac.  151.) 

Action  by  J.  A.  Morton  against  the  Oregon  Short  Line 
Railway  Company.  From  a  judgment  in  favor  of  defendant, 
plaintiff  appeals.  Reversed  and  remanded. 

This  is  a  suit  by  J.  A.  Morton  against  the  Oregon  Short 
Line  Railway,  a  corporation,  to  enjoin  the  maintenance  of  ob- 
structions to  the  flow  of  water  in  a  stream.  The  complaint 
states,  in  substance,  that  the  plaintiff  is  the  owner  of  certain 
real  property  in  section  28,  township  18  south,  of  range  47 
east,  in  Malheur  county,  which  land  lies  west  of  and  borders 
on  the  Snake  river;  that  in  1904  the  defendant  built  above 
4 


GO  WATER  RIGHTS  AND  IRRIGATION  LAW. 

such  premises,  in  the  west  channel  of  the  stream,  certain  dams 
which  deflected  the  water,  depositing  sediment  in  the  channel, 
and  shoaling  it  so  as  to  prevent  the  operation  of  plaintiff's 
private  ferry-boat  from  his  land  to  an  island  in  the  river,  and 
also  depriving  his  arid  land  of  water  from  the  river  for  sub- 
irrigation;  that  these  obstructions  caused  another  channel  to 
form  in  such  direction  as  to  force  a  current  directly  against 
the  bank  of  his  land,  cutting  away  a  wide  margin  thereof,  and 
if  such  encroachment  is  permitted  to  continue,  it  will  force  a 
channel  through  a  depression  in  his  premises,  making  an 
island  of  a  part  thereof  to  his  irreparable  injury,  to  redress 
which  he  has  no  plain,  speedy  or  adequate  remedy  at  law. 
The  answer  denied  the  material  allegations  of  the  complaint, 
and  averred,  in  effect,  that  in  1883  the  defendant  built  its  rail- 
road through  Malheur  county  on  the  right  of  way  now  occu- 
pied thereby,  and  thereafter  maintained  its  roadbed  and  track, 
operating  trains  thereon  for  the  benefit  of  the  public ;  that  at 
the  time  the  railroad  was  constructed  the  water  of  Snake  river, 
during  each  freshet,  flowed  through  a  swale  situated  between 
the  roadbed  and  the  west  channel  of  the  river,  and  the  floods 
in  that  stream  have  cut  and  are  cutting  away  the  bank  near 
the  track,  thereby  endangering  the  roadbed  to  such  an  extent 
that  the  defendant  was  compelled  to  build  the  obstructions 
complained  of,  to  prevent  its  property  from  being  destroyed; 
and  that  the  swale  is  the  so-called  channel  referred  to  in  the 
complaint  as  the  west  channel  of  the  river,  but  that  such  swale 
is,  and  at  the  time  the  railroad  was  constructed  was,  at 
least  three  hundred  feet  west  of  the  west  channel  of  Snake 
river.  The  reply  having  put  in  issue  the  allegations  of  new 
matter  in  the  answer,  the  cause  was  referred,  and  from  the 
testimony  taken  the  court  made  certain  findings  and  dismissed 
the  suit,  from  which  decree  the  plaintiff  appeals.  .  .  . 

MOORE,  J.  (after  stating  the  facts). — The  transcript 
shows  that  plaintiff  is  the  owner  of  the  real  property  men- 
tioned, and  that  his  land  borders  on  the  west  bank  of  the 
Snake  river.  The  township  referred  to  was  surveyed  in  1874, 
and  the  field-notes  thereof,  a  copy  of  which  was  offered  in 
evidence,  shows  that  the  left  bank  of  the  river,  as  meandered, 
then  intersected  the  south  boundary  of  section  33,  at  a  point 


MORTON  v.  OREGON  SHORT  LINE  RY.  Co.  51 

68.35  chains  west  of  the  southwest  corner  of  that  section  and 
extended  northwesterly  by  a  curved  line  to  a  point  west,  but 
near  the  center,  of  section  33 ;  thence,  by  a  similar  line  north- 
easterly, to  a  point  east  of  the  northeast  corner  of  that  section ; 
thence  westerly  and  northerly  by  a  curved  line  to  a  point  west 
of,  but  near  the  center  of,  section  28;  and  thence  northeast- 
erly to  a  point  2.80  chains  east  of  the  northeast  corner  of  the 
latter  section.  A  sketch  of  the  margin  of  the  river,  as  indi- 
cated, will  disclose  that,  when  the  government  survey  was 
made,  the  stream  flowed  around  a  peninsula  over  which  the 
boundary  between  sections  28  and  33  extended.  The  defend- 
ant, in  1883,  constructed  its  railroad  from  Huntington,  Ore- 
gon, southerly  through  the  premises  hereinbefore  described, 
and  also  through  adjoining  land  on  the  south,  now  owned  by 
H.  M.  Plummer.  The  defendant  offered  in  evidence  a  blue- 
print of  the  locus  in  quo,  reduced  to  a  scale  of  four  hundred 
feet  to  the  inch,  which  indicates  the  original  course  of  the 
river  as  meandered,  the  line  of  the  railway  as  constructed,  and 
other  data.  It  appears  from  this  plat  that  the  railroad  was 
built  about  fourteen  rods  west  of  the  meander  line  at  the  bend 
near  the  center  of  section  28,  and  about  fifty-two  rods  west 
thereof  at  the  curve  near  the  middle  of  section  33.  An  extraor- 
dinary freshet  in  Snake  river  in  1894  cut  across  the  base  of 
the  peninsula  a  new  channel,  which  extends  northeasterly  over 
what  theretofore  had  been  a  meadow.  Prior  to  such  change 
a  large  part  of  the  river  below  the  peninsula  flowed  in  a  chan- 
nel that  separated  plaintiff's  land  from  Datey  island,  east  of 
his  premises;  but,  after  such  flood,  the  greater  volume  of 
water  flowed  east  of  that  island.  Immediately  north  of  sec- 
tion 33,  but  south  of  Datey  island,  the  change  in  the  channel 
of  Snake  river  formed  a  large  sandbar,  constituting  an  island, 
the  surface  of  which  was  above  the  ordinary  stage  of  water. 
The  bar  is  separated  from  the  left  bank  of  the  river  by  a 
narrow  channel  which  extends  northerly,  and  is  also  severed 
from  Datey  island  by  a  broader  channel  that  extends  north- 
westerly, the  waters  of  which  unite  and  flow  by  plaintiff's 
premises.  The  freshet  adverted  to  and  the  annual  floods  in 
the  river  have  washed  away  the  left  bank  of  the  stream  in 
sections  28  and  33,  nearly  to  the  east  line  of  the  right  of  way 
of  the  railroad,  and,  to  prevent  further  injury  therefrom,  the 


52  WATER  RIGHTS  AND  IRRIGATION  LAW. 

defendant  placed  several  hundred  carloads  of  rock  along  the 
margin  of  the  river;  and  in  1903,  with  Plummer's  consent, 
it  built,  where  the  swale  had  been,  five  jetties  that  extend 
from  the  bank  downstream  at  an  acute  angle  with  the  thread 
thereof.  These  obstructions  were  made  by  driving  parallel 
rows  of  piling  about  twelve  feet  apart,  and  filling  the  inter- 
vening space  with  brush  and  rock.  The  lower  jetty  is  about 
two  hundred  and  fifteen  feet  long,  and  extends  nearly  across 
the  channel  west  of  the  sandbar  at  the  head  thereof.  The 
other  jetties  are  from  fifty  to  seventy-five  feet  in  length.  An- 
other extraordinary  freshet  in  1904  caused  the  bank  of  plain- 
tiff's land,  for  a  distance  of  about  half  a  mile,  to  be  washed 
away  to  the  depth  of  about  one  hundred  feet  or  more,  where- 
upon he  instituted  this  suit,  and,  at  the  trial,  offered  testimony 
tending  to  show  that  the  lower  jetty  prevented  the  water  from 
flowing  in  the  channel  west  of  the  sandbar,  thereby  permitting 
the  current  in  the  channel  between  the  bar  and  Datey  island 
to  flow  nearly  at  right  angles  against  his  bank,  damaging  it ; 
that  the  closing  of  the  channel  west  of  the  sandbar  caused  sedi- 
ment to  be  deposited,  shoaling  the  channel  east  of  his  land, 
and  preventing  him  from  operating,  by  force  of  the  current, 
a  ferry-boat  which  he  maintained  for  his  own  use  from  his 
premises  to  Datey  island,  a  part  of  which  he  held  by  a  lease 
from  year  to  year,  and  another  part  thereof  was  claimed  by 
his  son  as  a  homestead  where  cattle  were  pastured  in  which 
he  had  an  interest ;  and  that  if  the  lower  jetty  be  maintained, 
the  diminution  of  water  in  the  channel  will  prevent  the  sub- 
irrigation  of  his  land,  which  is  arid,  and  will  also  permit  the 
water  in  the  channel  north  of  the  sandbar  to  cut  into  a 
swale  on  his  premises,  thereby  forming  a  new  course  through 
his  land  and  creating  an  island.  The  testimony  relating  to 
the  injury  which  it  is  claimed  will  result  to  plaintiff's  land 
by  the  maintenance  of  the  lower  jetty,  though  given  by  per- 
sons living  in  the  vicinity  of  his  premises,  who  are  acquainted 
therewith,  know  the  character  of  the  soil,  and  the  effect  thereon 
of  freshets  in  the  river,  consists  of  the  opinions  of  several 
witnesses,  and  it  is  possible  that  the  disastrous  consequences 
which  they  predict  may  not  eventuate.  It  was  stipulated 
that  three  civil  engineers  who  were  employed  by  the  defend- 
ant would,  if  present,  testify  that  in  the  early  spring  of  1905 


MORTON  v.  OREGON  SHORT  LINE  RY.  Co.  53 

they  made  accurate  measurements  of  the  left  bank  of  the 
river  through  the  plaintiff's  premises,  setting  stakes  along  the 
margin  of  the  stream,  and  that  returning  to  his  land  in  the 
latter  part  of  July,  after  the  annual  freshet  had  subsided,  they 
found  that  no  part  of  the  bank  had  been  washed  away  during 
that  season,  but  that  the  water  in  the  river  in  1905  was  not  as 
high  as  it  was  the  preceding  year.  The  foregoing  is  deemed  a 
fair  statement  of  the  material  facts  involved,  and  based  thereon, 
the  question  to  be  determined  is  whether  or  not  the  jetties 
can  legally  be  maintained  where  they  are  built.  The  defend- 
ant 's  counsel  insist  that  the  river  having  suddenly  changed 
its  channel  in  1904,  thereby  endangering  the  railroad  track, 
their  client,  to  protect  its  property,  was  authorized  to  restore 
the  flow  of  the  stream  to  its  original  bed,  and  hence  the  decree 
should  be  affirmed. 

It  has  been  held  that  the  person  across  whose  land  a  freshet 
in  a  natural  stream  suddenly  causes  a  new  channel  to  be 
formed  may,  within  a  reasonable  time,  restore  the  flow  of 
water  to  its  original  bed.  (Farnham  on  Waters,  sec.  491; 
Mathewson  v.  Hoffman,  77  Mich.  420,  43  N.  W.  879,  6  L.  R. 
A.  349.)  It  will  be  remembered  that  the  defendant  built  the 
jetties  into  the  river  from  the  bank  of  Plummer's  land  with 
his  consent,  and,  as  he  is  a  riparian  proprietor  on  the  new 
channel,  the  railway  company,  as  his  licensee,  secured  such 
right  to  change  the  flow  of  the  current  as  he  possessed. 
(Slater  v.  Fox,  5  Hun  (N.  Y.),  544.)  An  examination  of  the 
blue-print  referred  to  shows  that  the  upper  jetty  is  built  nearly 
half  a  mile  below  the  original  meander  line  of  the  river 
where  it  commenced  to  cut  the  new  channel,  and  as  the  bar- 
riers complained  of  do  not  force  "the  water  around  the  penin- 
sula, they  were  evidently  constructed  to  prevent  injury  to  the 
railroad  grade  by  deflecting  the  current.  Instead,  therefore, 
of  attempting  to  restore  the  stream  to  its  ancient  channel,  the 
defendant,  by  building  the  jetties,  has  in  fact  recognized  the 
new  way  as  the  true  watercourse,  and  tried  to  confine  it  to  the 
bed  as  at  first  made.  The  swollen  current  of  Snake  river  dur- 
ing floods  is  nevertheless  a  part  of  that  stream,  at  the  place 
where  the  jetties  are  built,  and  not  surface  water,  within  the 
accepted  meaning  of  that  term,  against  which  a  land  pro- 
prietor may  combat  as  he  would  oppose  a  common  enemy, 


54  WATER  RIGHTS  AND  IRRIGATION  LAW. 

though  he  thereby  injures  the  real  property  of  others.  (Price 
v.  Oregon  R.  R.  &  Nav.  Co.,  47  Or.  350,  83  Pac.  843.)  The 
defendant's  counsel,  in  support  of  the  decree  rendered,  cite 
the  case  of  Gulf  etc.  Ry.  Co.  v.  Clark,  101  Fed.  678,  41  C.  C. 
A.  597,  upon  the  authority  of  which  the  trial  court  evidently 
relied.  In  that  case  a  railroad  company,  to  protect  its  road- 
bed, a  part  of  which  had  been  washed  away  by  the  gradual 
change  of  the  channel  of  a  river,  built  dikes  some  distance 
from  the  bank  of  the  stream  on  what  was  formerly  solid 
ground,  to  restore  the  current  to  its  original  channel.  These 
dikes  encroached  upon  the  channel  as  it  existed  when  they 
were  built,  and  deflecting  the  current  a  subsequent  freshet  in 
the  river  washed  away  part  of  the  land  of  a  riparian  proprie- 
tor, who  in  an  action  to  recover  the  damages  sustained  secured 
a  judgment,  in  reversing  which  the  circuit  court  of  appeals 
says:  "A  riparian  owner  may  construct  necessary  embank- 
ments, dikes,  or  other  structures  to  maintain  his  bank  of  the 
stream  in  its  original  condition,  or  to  restore  it  to  that  condi- 
tion, and  to  bring  back  the  stream  to  its  natural  course ;  and, 
if  it  does  no  more,  other  riparian  owners  upon  the  opposite 
or  upon  the  same  side  of  the  stream  can  recover  no  damages 
for  the  injury  his  action  causes  them."  In  that  case,  as  the 
means  adopted  to  prevent  the  roadbed  from  injury  from  en- 
croachments of  the  channel  consisted  of  dikes,  the  term  "other 
structures,"  referred  to  in  the  opinion  quoted,  evidently 
means  similar  formations,  and  not  jetties  placed  in  a  stream 
to  deflect  its  course.  The  conclusion  reached  in  the  case  ad- 
verted to  is  at  variance  with  the  rule  announced  in  Gerrish  v. 
Clough,  48  N.  H.  9,  97  Am.  Dec.  561,  2  Am.  Rep.  165,  where 
it  was  held  that  though  a  riparian  proprietor  was  authorized 
to  protect  the  bank  of  his  land  from  injury  from  the  encroach- 
ment of  a  natural  stream,  he  could  not,  without  incurring  lia- 
bility, erect  any  structure  for  that  purpose  which  would  injure 
the  property  of  others.  These  cases  illustrate  the  conflict 
that  exists  in  respect  to  this  important  subject.  Which  rule 
is  founded  on  the  better  reason,  or  supported  by  the  greater 
weight  of  judicial  utterance,  is  not  necessary  to  a  decision 
herein. 

The  words  "embankment"  and  "dike,"  when  used  to  rep- 
resent the  means  employed  to  prevent  the  inundation  of  land, 


MORTON  v.  OREGON  SHORT  LINE  RY.  Co.  55 

are  synonymous,  and  mean  a  structure  of  earth  or  other  ma- 
terial usually  placed  upon  the  bank  of  a  stieam  or  near  the 
shore  of  a  lake,  bay,  etc. ;  the  ends  of  which  extend  across 
lowland  to  higher  ground,  forming  a  continuous  bulwark  or 
obstruction  to  water,  and  designed  to  keep  it  without  the  in- 
closure  thus  formed.  A  dam,  however,  is  a  structure  com- 
posed of  wood,  earth  or  other  material,  erected  in  and  usually 
extending  across  the  entire  channel  at  right  angles  to  the 
thread  of  the  stream,  and  intended  to  retard  the  flow  of  water 
by  the  barrier  or  to  retain  it  within  the  obstruction.  A  jetty 
is  a  kind  of  a  clam  usually  built  in  the  manner  hereinbefore 
described,  and  intended  to  deflect  the  current  so  as  to  deepen 
the  channel  or  to  form  an  eddy  below  the  obstruction  in  which 
sediment  may  be  deposited,  thereby  extending  and  protecting 
the  bank.  Assuming  without  deciding  that  an  embankment 
may  be  built  by  a  riparian  proprietor  to  prevent  his  land  from 
being  submerged  in  extraordinary  freshets,  we  think  a  jetty 
cannot  be  classed  as  "other  structures"  specified  in  the  case 
relied  upon,  and  that  when  they,  by  deflecting  the  current  or 
by  shoaling  the  water,  injure  a  lower  riparian  proprietor,  the 
author  of  the  obstructions  violates  the  maxim,  "Sic  utere  tuo 
ut  alienum  non  laedas."  One  of  the  issues  to  be  tried  is  the 
identity  of  the  watercourse  west  of  the  sandbar  at  the  head  of 
which  the  long  jetty  is  built.  "The  channel,"  says  a  dis- 
tinguished text-writer,  "is  a  passageway  between  the  banks 
through  which  the  water  of  the  stream  flows."  (Farnham  on 
Waters,  sec.  417.)  This  definition  was  undoubtedly  intended 
to  apply  only  to  the  entire  uninterrupted  space  occupied  by 
water  flowing  between  well-defined  banks.  The  description 
of  a  channel,  as  given  by  the  learned  author,  is  broad  enough, 
however,  to  include  the  flow  of  water  between  an  island  and 
a  bank  of  a  stream,  and  hence  the  exact  meaning  of  the  word 
embraces  the  passageway  that  was  obstructed  by  the  defend- 
ant's lower  jetty.  As  the  blue-print  shows  this  to  be  a  water- 
course which  is  indicated  by  the  explanatory  words,  "Very 
swift  and  shallow,"  and  shows  the  passageway  to  be  the  most 
westerly  route,  we  have  no  doubt  that  it  is,  as  alleged  in  the 
complaint,  the  west  channel  of  the  Snake  river. 

It  appears  from  the  transcript  that  the  lower  jetty  was 
intended  to  close  this  entire  channel,  but  that  the  water,  de- 


56  WATER  EIGHTS  AND  IRRIGATION  LAW. 

fleeted  by  the  angle  of  the  barrier,  washed  the  sand  from  the 
outer  end  of  the  obstruction,  permitting  a  part  of  the  cur- 
rent to  continue  in  the  bed  of  the  stream  west  of  the  sand- 
bar, but  causing  the  greater  volume  to  flow  east  thereof.  As 
a  jetty  is  a  species  of  dam,  and  the  lower  obstruction  deprives 
a  riparian  proprietor  of  the  accustomed  flow  of  water  in  the 
channel  of  the  stream,  is  the  deprivation  of  the  right  which 
is  incident  to  the  estate  such  an  injury  as  will  authorize  the 
granting  of  the  relief  sought  1  The  plaintiff  and  his  witnesses 
express  the  opinion  that  if  the  water  is  permitted  to  flow  in 
the  west  channel,  it  will  continue  its  course  along  the  bank  of 
his  laud  and  diverge  the  current,  which  otherwise  strikes  his 
premises  at  nearly  right  angles.  This  consensus  of  opinion 
is  not  based  on  observations  as  to  the  effect  of  the  water  at 
the  line  of  injury  to  plaintiff's  land  during  the  flood  of  1904, 
but  the  consequences  assumed,  though  speculative,  seem  so 
reasonable  and  dependent  upon  the  laws  of  nature,  of  which 
a  court  will  take  judicial  notice,  that  we  are  forced  to  the 
determination  that  injury  must  necessarily  result  to  plain- 
tiff's premises,  and  to  his  property  rights  incident  thereto,  if 
another  freshet  should  occur  in  the  river.  The  conclusion  thus 
reached  makes  such  a  case  as  entitles  the  plaintiff  to  equitable 
intervention,  but,  as  the  lower  jetty  is  the  only  one  of  which 
he  seriously  complains,  that  obstruction  only  will  be  ordered 
abated. 

The  defendant's  objections  to  the  plaintiff's  right  to  in- 
stitute this  suit  and  to  prosecute  this  appeal  not  being  deemed 
important,  the  decree  is  reversed,  and  one  will  be  entered  here 
requiring  the  defendant,  within  three  months  from  the  entry 
of  a  mandate  herein  in  the  lower  court,  to  remove  the  long 
or  lower  jetty;  the  plaintiff  to  recover  his  costs  and  disburse- 
ments in  both  courts. 


SIIOTWELL  v.  DODGE.  57 


Riparian  Rights  —  Unreasonable  Method  of  Diversion. 

SIIOTWELL  et  al.  v.  DODGE. 
(8  Wash.  337,  36  Pac.  254.) 

STILES,  J.  —  The  respondents  move  to  strike  the  hill  of 
exceptions  containing  the  evidence  in  this  case,  on  the  ground 
that  no  error  is  assigned  upon  any  matter  excepted  to  in  the 
bill  itself.  The  point,  we  think,  is  not  well  taken.  The  ex- 
ception is  contained  in  the  record,  being  an  exception  to  the 
refusal  of  the  court  to  grant  a  new  trial  on  the  ground  that 
the  verdict  was  not  sustained  by  the  evidence.  The  bill  of 
exceptions  is  merely  a  part  of  that  exception,  containing,  as 
it  does,  all  the  evidence  introduced  at  the  trial.  Where  the 
error  alleged  is  the  refusal  of  the  court  to  grant  a  new  trial  on 
the  ground  of  the  insufficiency  of  the  evidence,  the  only  way 
to  correct  the  error  in  this  court  is  by  presenting  all  the  evi- 
dence in  the  case,  either  in  the  form  of  a  bill  of  exceptions  or 
statement  of  facts.  The  motion  is  therefore  denied. 

The  complaint  in  this  case  is  for  the  diversion  of  water  from 
a  flowing  stream,  to  the  plaintiff's  damage.  The  complaint 
alleges  that  the  plaintiffs  were  at  the  date  of  the  commence- 
ment of  the  action,  and  at  all  times  in  the  complaint  men- 
tioned, the  owners  of  a  certain  tract  of  land  described,  and 
were  in  possession  thereof,  and  that  they  and  their  grantors 
had  owned  said  land,  and  been  in  the  sole  and  exclusive  pos- 
session of  the  same,  since  the  year  1854,  that  the  defendant 
owned  a  half  section  of  land  lying  immediately  north  of,  and 
adjoining,  plaintiffs'  tract;  that  through  the  lands  of  both 
parties  a  brook  or  creek,  viz.,  Mima  creek,  flowed  from  north 
to  south,  within  a  weU-defined  channel,  protected  by  natural 
banks  ;  that  plaintiffs,  in  1891,  built  a  dam  across  Mima  creek, 
upon  their  own  land,  and  constructed  various  ditches  there- 
from, to  irrigate  their  lands  in  connection  with  their  farm- 
ing operations,  in  raising  hops,  grain,  vegetables,  and  fruits, 
and  also  for  the  purpose  of  conveying  the  waters  of  the  stream 
to  their  dwellings  and  barns,  to  use  the  same  for  domestic  pur- 
poses ;  that  the  land  was  entirely  dry,  and  without  irrigation 
was  not  productive;  that  in  1892  the  defendant  built  a  dam 


58  WATER  BIGHTS  AND  IRRIGATION  LAW. 

across  the  creek,  on  his  land,  whereby  he  completely  stopped 
the  water  from  flowing  in  its  accustomed  channel  through 
plaintiffs'  land,  as  it  was  accustomed  to  flow,  and  from  flow- 
ing into  and  through  plaintiffs'  ditch ;  that  in  connection  with 
his  dam  the  defendant  also  constructed  a  ditch  by  which  he 
carried  the  water  of  said  creek  eastward,  over  his  own  land, 
where  he  permitted  it  to  scatter  and  waste,  without  providing 
any  artificial  channel  for  its  return  to  the  bed  of  the  creek. 
The  damages  laid  for  a  diversion  of  the  water  were  $5,000, 
and  special  damages  were  also  pleaded,  by  showing  that  a 
crop  of  hops  which  plaintiffs  grew  on  their  lands  in  1892 
was  decreased  in  value  in  the  sum  of  $1,000;  and  $250  was 
claimed  for  the  plaintiffs'  deprivation  of  water  for  domestic 
purposes.  The  defendant  demurred  to  this  complaint  for  the 
reason  that  there  was  no  allegation  that  the  plaintiffs  had  the 
right  to  use  the  water  of  the  creek,  or  any  portion  of  it.  It 
will  be  observed  that  one  of  the  grounds  of  damage  alleged  is 
the  mere  diversion  of  the  water  from  its  accustomed  channel ; 
and  appellant's  position  is  that  such  action,  coupled  with  the 
allegations  of  waste  which  the  complaint  contains,  is  insuffi- 
cient in  law  to  base  a  claim  of  damages  upon.  Every  owner 
of  land,  through  which  a  natural  stream  of  water  ordinarily 
flows,  is  entitled  to  have  such  flow  continued  without  inter- 
ruption or  diminution,  except  as  the  interference  may  be 
caused  by  the  reasonable  use  of  water  by  other  proprietors 
of  the  stream,  higher  up,  along  its  course.  To  sustain  an  ac- 
tion for  damages  of  this  character,  no  allegation  of  any  actual 
use  is  necessary.  The  right  to  the  flow  is  absolute,  and  when 
that  has  been  interrupted  the  right  to  nominal  damages  is 
complete.  (Parker  v.  Griswold,  17  Conn.  288,  42  Am.  Dec. 
739.)  We  have  examined  numerous  precedents  for  com- 
plaints in  such  cases,  including  those  cited  in  2  Chit.  PL,  6th 
ed.,  624  et  seq.,  and  those  noted  in  2  Boone,  Code  PI.  326, 
and  without  exception  they  contain,  in  each  instance,  an  alle- 
gation of  the  right  to  use  flowing  water.  But,  in  view  of  the 
fact  that  this  right  to  the  uninterrupted  flow  of  water  is  a 
part  of  the  land  itself,  we  see  no  necessity  for  an  allegation 
that  the  owner  and  possessor  of  the  land  is  also  the  possessor 
of  this  right,  because  the  ownership  and  possession  of  the  land 
imply  the  ownership  and  possession  of  the  right  as  well. 


SHOTWELL  v.  DODGE.  59 

Counsel  urges  that  the  right  is  separable  from  the  land,  and 
might  have  been  conveyed,  or  the  right  to  the  use  of  the  water 
by  some  other  party  might  have  been  acquired  by  prescription. 
But  it  must  be  remembered  that  the  wrong  complained  of  is 
a  trespass,  and,  by  analogy  with  other  cases  of  trespass  upon 
real  property,  the  allegation  would  be  unnecessary.  It  is  a 
trespass  for  one  person  to  step  upon  the  land  of  another,  and 
damages  may  be  recovered  therefor;  but  it  is  not  necessary, 
in  such  case,  that  the  pleader  allege  that  the  plaintiff  had  a 
right  to  have  the  grass  upon  which  the  trespasser  trod  con- 
tinue to  grow  after  the  manner  of  its  nature.  A  complaint 
for  the  injury  or  destruction  of  trees  need  not  allege  that  the 
owner  and  possessor  of  the  land  upon  which  the  trees  grew 
had  a  right  to  have  them  continue  to  grow.  In  each  case,  if, 
as  a  matter  of  fact,  the  owner  of  the  land  has  parted  with  the 
grass  or  trees  to  some  third  person,  who  in  that  case  would 
be  the  injured  party,  it  is  the  privilege  and  duty  of  the  de- 
fendant to  plead  those  facts  as  his  defense.  So,  if  the  land 
owner  has  parted  with  his  right  to  the  flowage  of  water,  where 
the  gravamen  of  the  action  is  the  interruption  of  the  flow, 
the  alienation  is  matter  of  defense. 

The  only  other  error  alleged  in  this  case  is  that  the  evidence 
did  not  justify  the  verdict,  and  upon  that  point  we  find  it 
necessary  to  agree  with  appellant.  The  jury  found  a  verdict 
for  $850.  Under  the  facts  shown,  we  think  the  evidence  was 
sufficient  to  have  justified  a  verdict  for  nominal  damages 
against  the  defendant  for  the  diversion  of  the  water.  He  con- 
fessed to  the  building  of  a  dam  in  the  bed  of  the  stream,  and 
to  the  diversion  of  a  considerable  portion  of  the  water  there- 
from, and  showed  no  reasonable  use  thereof.  So  far  as  his 
use  of  the  water  for  domestic  purposes  was  concerned,  his  acts 
might  possibly  have  been  sustained ;  but  his  pretended  irriga- 
tion seems  to  have  amounted  to  nothing  more  than  the  digging 
of  a  single  ditch  for  a  long  distance  through  his  farm,  and 
allowing  the  water  to  flow  freely  through  it  until  it  became 
lost  at  the  end  of  the  ditch.  The  soil  through  which  the  ditch 
passed  was  of  such  a  character  that  a  very  large  amount  of 
water  would  necessarily  be  lost  in  its  mere  passage  through 
the  ditch.  Allowance  must,  of  course,  be  made  for  some  such 
loss;  but  when  the  loss  becomes  extreme,  by  reason  of  the 


60  WATEB  RIGHTS  AND  IRRIGATION  LAW. 

porous  character  of  the  soil,  and  water  is  scarce,  it  becomes 
necessary  for  an  irrigator  to  take  reasonable  means  to  lessen 
the  amount  of  loss.  As  to  defendant's  irrigation,  itself,  it 
amounted  to  nothing  more  than  suffering  the  water  in  the 
ditch  to  percolate  sidewise  through  the  banks,  along  which 
certain  orchard  trees  and  garden  vegetables  were  growing. 
This  was  not  irrigation  at  all ;  much  less,  reasonable  irrigation. 
Where  water  is  an  important  feature  in  the  success  of  farm- 
ing operations,  it  becomes  the  irrigator  to  use  proper  means 
to  bring  the  water  to  points  where  it  is  needed ;  to  use  it  only 
at  such  times  and  in  such  quantities  as  are  necessary  for  the 
purpose;  and  then,  if  others  situated  like  himself  require  the 
water,  to  stop  its  flow  until  it  shall  again  become  necessary. 
The  constant  flow  of  water  in  the  ditch,  all  the  summer 
through,  to  the  extent  to  which  the  defendant  caused  the  water 
of  Mima  creek  to  flow,  would  be  inexcusable,  under  any  cir- 
cumstances, when  others  had  equal  need  of  the  water  for  ir- 
rigation. But  beyond  this  nominal  damage,  the  plaintiffs 
showed  no  fact  upon  which  a  substantial  recovery  could  be 
based.  At  the  highest  point  on  the  creek  on  their  farm,  im- 
mediately adjoining  the  defendant's  land,  they  also  constructed 
a  dam,  nine  feet  high,  and  dug  a  ditch.  The  point  at  which 
their  ditch  left  the  creek  seems  to  have  been  a  difficult  one 
from  which  to  take  out  water;  but  their  object  was  to  run 
the  water  at  a  right  angle  from  the  creek,  a  distance  of  from 
a  quarter  to  a  half  mile,  and  there  discharge  it  at  a  high  point 
on  their  land,  so  that  it  wrould  irrigate  a  large  area  which 
they  had  planted  in  various  crops.  To  accomplish  this  pur- 
pose at  all,  the  bottom  of  their  ditch  had  to  be  some  five  feet 
above  the  level  of  the  stream.  Their  dam,  therefore,  as  stated 
before,  was  nine  feet  high,  and  the  water  had  to  be  set  back 
in  the  reservoir  or  pond  to  the  depth  of  at  least  six  or  seven 
feet  before  it  would  make  the  required  depth  in  their  ditch. 
The  effect  of  this  was  to  set  the  water  back  upon  the  defend- 
ant's land  so  that  it  overflowed  a  half  acre  or  more.  Conced- 
ing that  it  was  competent  for  the  plaintiffs  to  build  their  dam 
where  they  did,  they  had  no  right  to  cause  the  water  to  spread 
itself  out  in  a  pond  on  the  defendant's  land.  Just  how  high 
they  could  raise  the  water  at  their  dam  before  it  would  flow 
back  on  to  defendant's  land  did  not  appear;  and  neither  did 


SHOTWELL  v.  DODGE.  61 

it  appear  that,  without  such  reflow  of  the  water,  they  would 
have  had  any  water  whatever  in  their  ditch.  They  cannot 
base  their  right  of  action  upon  a  wrong  committed  by  them- 
selves, and  until  it  be  shown  that,  without  committing  such 
wrong  to  defendant,  their  ditch  would  have  furnished  the 
water  of  which  they  say  they  were  deprived,  they  cannot  main- 
tain their  action. 

As  to  the  evidence  of  damage,  nothing  was  shown  as  to  the 
damage  suffered  by  deprivation  of  water  for  domestic  use,  ex- 
cept that  it  was  sometimes  necessary  to  carry  water  from  the 
stream  to  their  houses,  a  quarter  of  a  mile  distant,  instead 
of  getting  it  from  the  ditch.  But  while  they  would  have  had 
a  right  to  complain  of  their  loss  for  domestic  purposes,  had 
none  been  left  in  the  stream,  as  there  was,  in  fact,  at  all  times, 
abundant  water  for  such  purposes  in  the  stream,  they  cannot 
complain  that  their  ditch  did  not  furnish  it  at  the  distance  at 
which  their  houses  stood,  unless  it  be  shown  that,  when  the 
water  in  the  dam  was  lowered  so  as  to  relieve  defendant's 
land  from  the  reflow,  water  would  still  have  been  served  to 
their  houses  in  the  ditch.  Moreover,  nothing  was  shown  as 
to  what  amount  of  inconvenience,  or  loss  of  time,  or  labor  was 
involved  in  getting  the  water  for  domestic  purposes  from  the 
stream. 

As  to  the  hops,  it  appeared  that,  in  1891,  seventy-nine  bales 
of  hops  were  raised  on  ten  acres,  when  water  was  plenty,  and 
that  in  1892,  from  fifteen  acres,  only  fifty-nine  bales  were 
raised,  water  being  scarce.  The  difference  in  the  quantity  of 
hops  in  the  two  years  was  some  fourteen  thousand  pounds, 
estimating  the  additional  five  acres  of  1892  as  full-bearing 
hops;  but  it  was  shown  that  this  was  the  first  year  of  those 
five  acres,  when  they  were  not  expected  to  bear  to  any  profit- 
able extent.  Conceding,  however,  that  there  was  a  consid- 
erable loss  by  reason  of  the  want  of  water,  the  evidence  merely 
showed  that  hops  were  worth  from  thirteen  to  twenty-two 
cents  a  pound  in  1892,  and  the  case  was  left  to  the  jury  upon 
the  inference  that  the  gross  amount  of  hops  at  the  price  of 
hops  in  that  year  would  have  been  the  actual  loss.  But  such 
is  not  the  measure  of  damages  in  such  cases.  The  net  loss  is 
all  that  can  be  recovered,  viz.,  the  market  value  of  the  crop 
alleged  to  be  lost,  over  the  cost  of  producing,  harvesting,  and 


62  WATER  RIGHTS  AND  IRRIGATION  LAW. 

marketing.  (Lommeland  v.  St.  Paul  etc.  R.  R.  Co.,  35  Minn. 
412,  29  N.  W.  119 ;  Holden  v.  Winnipiseogee  Lake  Co.,  53  N. 
H.  552 ;  Sedg.  Dam.,  pp.  191,  937 ;  Smith  v.  Chicago  etc.  R.  R. 
Co.,  38  Iowa,  518.)  But,  as  was  said  before,  until  it  should 
appear  that,  with  the  water  at  the  dam  lowered  to  a  point 
where  it  could  not  flow  over  defendant's  land,  there  would 
have  been  water  enough  in  the  ditch  to  have  saved  the  hops, 
there  could  be  no  recovery  for  their  loss.  Judgment  reversed, 
and  cause  remanded  for  a  new  trial. 


Riparian  Rights — Domestic  and  Irrigation  Uses. 
NIELSON  et  al.  v.  SPONER. 

(46  Wash.  14,  123  Am.  St.  Eep.  910,  89  Pae.  155.) 

ROOT,  J. — This  action  was  brought  by  respondents,  as 
lower  riparian  owners,  to  enjoin  the  appellant  from  unreason- 
ably using  and  diverting  the  waters  of  Thomas  (or  Sponer) 
creek,  a  small  stream  flowing  across  the  lands  of  appellant  and 
respondents.  From  a  judgment  and  decree  in  favor  of  re- 
spondents, this  appeal  is  prosecuted. 

It  appears  that  there  is  very  little  water  in  said  stream  dur- 
ing the  months  of  July,  August  and  September;  that  at  times 
during  said  period  the  appellant  diverted  said  water  for  the 
purpose  of  irrigating  his  orchard.  It  is  claimed  by  respond- 
ents that  this  water  was  diverted  by  means  of  a  small  ditch 
running  through  soil  that  was  very  porous,  and  which  neces- 
sarily occasioned  the  loss  and  waste  of  much  of  the  water;  that 
the  water  was  not  returned  to  the  creek,  and  consequently  re- 
spondents could  get  no  water  for  domestic  purposes  from  said 
creek  during  the  summer  period,  when  the  water  was  so  di- 
verted by  the  appellant.  The  latter  claims  that  during  the 
said  summer  months  there  is  no  water  in  the  creek,  excepting 
such  as  comes  from  a  spring  situated  upon  his  premises,  and 
contends  that  he  is  entitled  to  take  all  of  such  water  that  is 
capable  of  being  used  upon  his  premises.  He  relies  as  au- 
thority for  this  upon  section  4114  of  1  Ballinger's  Ann.  Codes 


NIELSON  v.  SPONER.  63 

&  St.,  a  part  of  which  reads  as  follows:  "Provided,  that  the 
person  upon  whose  lands  the  seepage  or  spring  waters  first 
rise  shall  have  a  prior  right  to  such  water,  if  capable  of  being 
used  upon  his  lands."  This  statute  was  enacted  in  1890. 
The  evidence  in  this  case  shows  that  respondents'  land  was 
patented  in  1883,  and  that  it  has  been  occupied  ever  since. 
Under  the  common  law,  each  riparian  proprietor  had  a  right 
to  ordinary  use  for  domestic  purposes  of  water  flowing  in  a 
defined  stream  past  or  through  his  land.  In  the  case  of 
Geddis  v.  Parrish,  1  Wash.  587,  21  Pac.  314,  the  supreme 
court  of  Washington  Territory  held  that  a  lower  riparian 
owner  was  entitled  to  and  could  exercise  this  right  even 
though  the  waters  of  such  stream  originated  in  a  spring  upon 
the  land  of  the  person  seeking  to  divert  them  from  the  natural 
channel. 

Under  the  authorities  it  would  seem  that  the  privilege  of 
the  respondent's  predecessors  to  use  the  waters  of  the  stream 
in  question  here  was  a  property  right  running  with  the  land 
from  the  time  it  was  patented  by  the  government  in  1883. 
This  being  true,  an  act  of  the  legislature  in  1890  authorizing  a 
land  owner  to  use  all  the  spring  water  arising  on  his  land,  and 
thereby  destroying  the  use  of  such  water  to  the  lower  riparian 
owner,  would  be  unconstitutional,  as  a  taking  or  destroying  of 
property  without  due  process  of  law.  Appellant  had  the  right 
to  make  free  use  of  this  water,  whether  it  came  from  a  spring 
on  his  land  or  otherwise,  for  ordinary  domestic  purposes ;  but 
we  do  not  think  that  irrigation,  at  least  when  conducted  in 
the  manner  that  this  was,  can  constitute  a  use  which  will  jus- 
tify an  upper  riparian  owner  in  taking  all  of  the  water,  to 
the  destruction  of  the  ordinary  domestic  uses  thereof  by  a  ri- 
parian owner  below,  in  the  absence  of  a  prior  legal  appropria- 
tion. 

The  judgment  of  the  superior  court  is  affirmed. 


I  4 

. 

64  .WATER  EIGHTS  AND  IRRIGATION  LAW. 


Motives  of  Lawful  Acts  by  Riparian  Proprietor — Damnum 
Absque  Injuria. 

W.  F.  FISHER,  Respondent,  v.  JULIA  M.  FEIGE  et  al.,  Ap- 
pellants. 
(137  Cal.  39,  92  Am.  St.  Rep.  77,  69  Pac.  618,  59  L.  R.  A.  333.) 

McFARLAND,  J. — This  is  an  appeal  by  defendants  from  a 
judgment  in  favor  of  plaintiff. 

The  plaintiff  is  a  lower  riparian  proprietor  on  a  certain 
watercourse,  and  defendants  are  upper  riparian  proprietors 
thereon.  The  action  was  brought  to  recover  damages  in  the 
sum  of  five  thousand  dollars  for  certain  alleged  interferences 
by  defendants  with  the  flow  of  the  water  in  the  stream,  and 
for  a  perpetual  injunction  restraining  defendants  from  their 
repetition  of  the  alleged  wrongs.  The  court  found  that  plain- 
tiff was  damaged  in  the  sum  of  one  cent  by  the  alleged  wrongs, 
for  which  amount  judgment  was  rendered ;  and  by  the  judg- 
ment defendants  were  also  perpetually  enjoined  from  doing 
certain  acts.  Defendants  appealed  from  the  judgment. 

It  is  quite  clear  that  the  judgment,  as  it  stands,  cannot  be 
rightfully  affirmed.  There  is  no  averment  or  finding  that 
defendants  have  diverted  any  water  from  the  stream.  It  is 
averred  that  along  and  adjacent  to  the  stream  as  it  flows 
through  defendants'  land  there  is  a  heavy  growth  of  timber, 
which,  before  the  alleged  wrongful  acts  of  defendants,  pro- 
tected the  waters  of  the  stream  from  evaporation  by  drying 
winds  and  the  rays  of  the  sun,  and  that  defendants  have  cut 
and  felled  a  large  number  of  trees,  and  thus  let  in  the  sun 
and  the  wind,  and  caused  the  waters  to  be  diminished  by 
evaporation,  so  that  not  as  much  flowed  down  on  to  plaintiff's 
land  as  formerly;  and  that  they  threatened  to  fell  more  of 
said  trees  in  the  future.  It  is  also  averred  that  defendants 
have  erected  certain  dams  or  embankments  across  the  stream 
by  which  the  waters  have  been  prevented  from  flowing  down 
the  channel  of  said  stream  "as  they  have  been  accustomed  to 
flow,"  and  from  flowing  into  and  upon  the  land  of  plaintiff, 
"as  they  otherwise  would  have  flowed."  It  is  also  averred 


FISHER  v.  FEIGE.  65 

that  defendants  caused  about  ten  trees  to  be  felled  into  said 
stream,  and  allowed  them  to  remain  there,  and  that  this  ren- 
dered the  waters  unpalatable  and  unwholesome.  It  is  also 
averred  that  defendants'  land  is  wild  and  untilled,  and  is  not 
susceptible  to  cultivation.  The  foregoing  constitute  the  main 
averments  upon  which  plaintiff  bases  his  prayer  for  damages 
and  injunction — it  being  averred  that  defendants  threaten  to 
continue  the  said  acts.  It  is  also  averred,  and  found  by  the 
court,  that  said  acts  were  done  by  defendants,  "solely  for 
the  purpose  of  injuring  the  plaintiff  and  damaging  his  said 
property,  and  out  of  spite  and  ill-will  toward  the  plaintiff." 

As  both  court  and  counsel  seem  to  have  attached  consider- 
able significance  to  the  alleged  motive  which  led  defendants  to 
do  the  acts  complained  of,  it  may  be  proper  to  briefly  notice 
that  subject.  In  civil  cases,  of  the  character  of  the  one  at 
bar,  the  general  rule,  no  doubt,  is,  as  stated  in  Mayor  etc.  of 
Bradford  v.  Pickles,  [1895]  App.  Cas.  587,  that  "no  use  of 
property  which  would  be  legal  if  due  to  a  proper  motive  can 
become  illegal  because  it  is  prompted  by  a  motive  which  is 
improper  or  even  malicious."  But  there  may  be  cases  where 
the  very  question  of  the  legality  of  an  act  would  depend  upon 
the  purpose  for  which  it  was  done.  This  is  particularly  so 
with  respect  to  the  use  of  water  under  the  law  of  this  state 
on  that  subject.  For  instance,  a  riparian  owner  in  California 
has  a  right  to  a  reasonable  use  of  the  water  of  a  natural  stream 
running  through  his  premises  for  the  purpose  of  irrigating 
his  riparian  land;  and  this  includes  the  incidental  right  to 
divert  on  to  his  land  what,  under  all  the  circumstances,  would 
be  a  reasonable  amount  of  the  water,  by  dams  and  other  neces- 
sary appliances.  And  in  an  action  by  a  lower  against  an 
upper  riparian  owner  for  diversion  of  water,  the  latter  could 
successfully  defend  by  showing  that  he  had  only  used  a  reason- 
able amount  of  the  water  to  irrigate  his  land ;  but  there  would 
be  no  such  defense  if  it  appeared  that  he  diverted  the  water 
merely  to  let  it  run  to  waste,  and  did  not  make,  nor  intend  to 
make,  any  beneficial  use  of  it  for  irrigation,  or  that  he  had 
carried  it  to  nonriparian  lands.  He  could  not  lawfully,  any 
more  than  could  one  claiming  merely  by  appropriation,  thus 
divert  the  water  without  applying  it  to  a  beneficial  use. 

5 


66  WATER  RIGHTS  AND  IRRIGATION  LAW. 

But  in  the  case  at  bar  there  was  no  diversion;  and  under 
the  facts  found  we  cannot  see  how  the  lawfulness  of  thy  acts 
enjoined  can  depend  upon  the  motives  by  which  they  were 
done,  or  may  be  done  in  the  future. 

It  is  found  that  the  defendants  did  fell  trees  on  their  lands, 
and  threatened  to  fell  more,  the  effect  of  which  was,  and 
would  be,  to  let  in  the  sun  and  winds,  and  thus  increase  evapo- 
ration. It  was  also  found  that  they  had  built  some  dams  in 
the  stream  by  which  the  waters  were  prevented  from  flowing 
' '  as  they  otherwise  would  have  flowed ' ' ;  but  there  is  no  find- 
ing that  these  dams  prevented  the  usual  amount  of  water  from 
reaching  plaintiff's  land.  It  was  also  found  that  the  land  of 
defendants  is  wild  and  untilled,  and  "for  the  greater  part,  is 
not  susceptible  of  cultivation." 

There  is  also  a  finding — somewhat  obscured  by  being  mixed 
up  with  other  matters  in  finding  No.  VI — that  defendants 
felled  some  trees  in  the  stream  by  which  the  waters  were 
rendered  unpalatable  and  unwholesome,  and  that  they  threat- 
ened to  fell  other  trees  into  the  stream,  there  to  remain  and 
decay,  whereby  the  waters  of  said  stream  will  be  rendered  un- 
fit for  household  and  domestic  purposes.  The  foregoing  are 
substantially  the  findings  upon  which  the  injunction  is  based. 
The  injunction  is  most  sweeping  in  its  terms.  By  the  judg- 
ment the  defendants  are  "perpetually  enjoined  and  restrained 
from  in  any  manner  obstructing  or  impeding  or  hindering 
the  natural  flow  of  the  waters  of  that  certain  stream  at  any 
point  therein  or  thereon  above  the  said  lands  of  plaintiff," 
and  also  "from  cutting  or  felling  the  timbers  and  trees  grow- 
ing in  the  channel  and  upon  the  immediate  banks  of  said 
stream  at  any  point  above  the  said  lands  of  the  plaintiff, 
whereby  the  said  stream  will  be  exposed  to  the  rays  of  the  sun 
and  the  waters  thereof  lost  or  materially  diminished  by  evapo- 
ration." They  are  also  enjoined  from  felling  any  trees  into 
the  stream  and  allowing  them  to  remain  there  and  decay.  No 
right  is  preserved  to  defendants,  except  to  take  water  for  do- 
mestic purposes  and  for  stock. 

It  is  evident  that  very  little,  if  any,  of  this  injunction  can 
be  sustained.  It  is  quite  apparent  that  cutting  trees  upon 
one's  own  land  is  a  lawful  act  which  cannot  be  restrained  be- 
cause it  "lets  in  the  sun"  and  causes  more  evaporation;  any 


FISHER  v.  FEIGE.  G7 

incidental  damage  which  might  come  to  a  lower  riparian  owner 
from  such  lawful  act  would  clearly  be  damnum  absque  injuria. 
And,  then,  a  man  may  build  a  dam  across  a  stream  on  his 
own  land,  provided  that  thereby  he  does  not  appreciably  di- 
minish the  amount  of  water  which  should  naturally  flow  on  to 
the  land  of  his  neighbor  below.  But,  in  addition,  the  judg- 
ment in  this  case  perpetually  prohibits  defendants  from  ever 
exercising  many  of  the  undoubted  rights  of  riparian  owners. 
They  are  allowed  only  to  use  "so  much  of  the  waters  of  said 
stream  as  may  be  necessary  for  their  household  and  domestic 
purposes,  and  for  water  for  their  stock."  There  is  not  even 
any  provision  for  changing  conditions.  The  defendants  are 
perpetually  cut  off  from  ever  using  the  water  for  irrigation, 
or  as  motive  power,  or  for  fish-ponds,  bath-houses,  etc.,  or  for 
ornamental  and  many  other  purposes,  for  which  a  riparian 
proprietor  may,  in  a  measure,  control  the  stream  on  his  own 
land,  if  he  does  not  thereby  materially  diminish  its  flow  on  to 
lands  below,  or  appreciably  adulterate  its  quality. 

No  doubt,  the  defendants  could  be  enjoined  from  felling 
trees  into  the  stream,  if  thereby  the  water  was  made  unfit  for 
domestic  use;  but  on  that  subject  the  findings  should,  we 
think,  be  more  certain  and  specific.  It  does  not  fully  appear 
that  the  injury  thus  done  to  the  quality  of  the  water  was 
material ;  and  the  findings  as  to  that  matter  are  rather  incon- 
sistent with  the  other  finding,  that  all  the  damage  done  by  all 
of  the  alleged  acts  of  defendants  amounted  to  only  one  cent. 
If  there  be  another  trial,  there  should  be  a  fuller  finding  on 
this  subject ;  and  also  as  to  whether  the  dams  alleged  to  have 
been  made  by  defendants  on  their  own  land  materially  lessened 
the  flow  of  the  water  on  to  the  land  of  plaintiff. 

The  judgment  appealed  from  is  reversed. 


C8 


WATER  EIGHTS  AND  IRRIGATION  LAW. 


Riparian  Owner — Diversion  of  Flood  Waters. 

W.  J.  FIFIELD,  Appellant,  v.  SPRING  VALLEY  WATER- 
WORKS,  Respondent. 

(130  Gal.  552,  62  Pac.  1054.) 

VAN  DYKE,  J. — The  plaintiff  and  appellant  is  the  owner 
of  a  certain  tract  of  land  in  San  Mateo  county,  through  which 
the  waters  of  San  Mateo  creek  flow  in  a  natural  channel. 
The  defendant  is  a  corporation  conducting  and  carrying  on 
the  business  of  supplying  the  inhabitants  of  the  city  and 
county  of  San  Francisco  with  water.  It  is  charged  in  plain- 
tiff's complaint  that  defendant  is  engaged  in  constructing  a 
tunnel  above  plaintiff's  land,  with  the  intent  and  purpose  of 
diverting  through  said  tunnel,  when  completed,  the  waters  of 
said  creek  into  the  San  Andreas  reservoir,  thereby  preventing 
the  same  from  reaching  or  flowing  through  the  land  of  the 
plaintiff.  And  an  injunction  is  prayed  to  prevent  the  de- 
fendant from  so  diverting  the  waters  of  said  creek. 

In  defendant's  answer  it  is  denied  that  said  defendant 
threatens,  or  ever  has  threatened,  or  intends  to  divert  the 
waters  of  said  creek  as  in  the  complaint  alleged,  but  avers  that 
it  only  intends  to  divert  through  said  tunnel  the  storm  and 
flood  waters,  and  none  of  the  ordinary  flow  of  said  stream. 

The  court  finds  that  it  is  not  the  object  of  defendant  in  con- 
structing said  tunnel  to  divert  any  of  the  waters  of  said  creek 
into  said  San  Andreas  reservoir,  except  said  storm  or  flood 
waters,  or  waters  flowing  in  said  creek  during  times  of  extra 
high  water  or  freshets  in  said  stream,  nor  in  any  other  way, 
nor  to  any  other  extent,  to  prevent  the  waters  of  said  creek 
from  reaching  or  flowing  through  the  lands  of  the  plaintiff. 
The  judgment  and  decree  entered  upon  the  findings  is,  after 
defining  storm  or  freshet  waters  to  be  such  waters  as  flow 
down  a  stream  during  and  after  a  rainstorm,  and  which  are 
in  excess  of  the  ordinary  flow,  "that  the  defendant  is  hereby 
enjoined  and  restrained  from  diverting  or  in  any  way  re- 
straining, at  any  time  or  times,  the  ordinary  flow  of  water  in 
San  Mateo  creek  through  the  lands  of  plaintiff,  as  said  ordi- 
nary flow  is  above  described  and  defined ;  and  that  the  defend- 


FIFIELD  v.  SPRING  VALLEY  WATERWORKS.  69 

ant  be,  and  it  is  hereby,  permitted  and  authorized,  by  the 
flume  and  tunnel  mentioned  in  its  answer,  as  above  plaintiff's 
said  land  or  otherwise,  to  take  and  divert  from  said  San 
Mateo  creek,  above  the  said  lands  of  plaintiff  in  the  complaint 
described,  the  storm  or  freshet  or  flood  waters  (as  above  de- 
scribed or  defined)  that  may  flow  in  or  into  San  Mateo  creek 
above  said  lands,  during  times  of  extraordinary  high  water 
or  freshet  in  said  creek  or  stream,  provided  that  defendant 
permits  at  all  times  all  the  ordinary  flow  of  said  creek  to  go 
down  to  plaintiff's  lands,  and  provided  that  defendant  shall 
make  such  diversion  so  as  not  at  any  time  to  stop  or  divert  any 
of  the  said  ordinary  flow  above  plaintiff's  said  lands,  and  pro- 
vided that  it  uses,  and  it  is  hereby  directed  to  use  in  the  prem- 
ises, mechanical  means  capable  of  accomplishing  and  actually 
accomplishing  such  results  as  aforesaid,  namely,  permitting  at 
all  times  all  the  ordinary  flow  of  said  San  Mateo  creek  to  go 
down  to  said  plaintiff's  lands  described  in  the  complaint,  and 
so  constructed  as  not  at  any  time  to  stop  or  divert  any  of  said 
ordinary  flow  down  said  creek  to  said  plaintiff's  said  lands." 
The  respondent  contends  that  there  is  no  appeal  in  this 
case  from  the  judgment  in  question,  for  want  of  a  proper  no- 
tice. It  must  be  admitted  the  notice  is  unusual  in  form.  The 
law  requires  a  notice  to  state  that  the  appeal  is  taken  from 
the  judgment  or  order  appealed  from,  "or  some  specific  part 
thereof."  (Code  Civ.  Proc.,  sec.  940.)  Here  the  notice  reads 
that  the  plaintiff  in  the  above-entitled  action  appeals  from 
the  judgment  therein  given  in  favor  of  the  defendant  in  said 
action,  and  against  said  plaintiff,  "and  from  the  whole  of 
said  judgment,  and  particularly  that  portion  of  said  judg- 
ment whereby  defendant  is  adjudged  entitled  to  divert  a  por- 
tion of  the  waters  of  San  Mateo  creek."  But  the  judgment 
here  is  not  in  favor  of  the  defendant,  but  is  in  favor  of  the 
plaintiff,  and  he  is  awarded  his  costs  in  the  action.  Plaintiff 
can  hardly  be  presumed  to  have  intended  to  appeal  from  a 
judgment  in  his  favor;  but  from  the  literal  reading  of  the 
notice,  however,  it  might  bear  that  construction,  for  it  reads 
"and  from  the  whole  of  said  judgment  and  particularly  that 
portion,"  etc.  However,  it  is  not  necessary  to  pass  upon  this 
objection  to  the  notice  of  appeal,  for  the  case  must  be  dis- 
posed of  in  favor  of  the  respondent  upon  the  meritss 


70  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  court  finds  that  the  diversion  of  the  storm  or  flood 
water  by  defendant  as  proposed  "will  not  damage  said  land 
in  any  way,  nor  in  any  way  interfere  with  plaintiff's  right 
in  the  premises,  or  with  the  rights  appurtenant  to  said  land. ' ' 
This  being  so — and  the  finding  upon  this  appeal  from  the 
judgment  must  be  taken  as  conclusive — the  plaintiff  is  not 
injured,  and  cannot  be  damaged  by  the  diversion  of  storm 
or  flood  water,  hence  it  is  not  entitled  to  an  injunction  re- 
straining the  diversion  of  such  storm  or  flood  water.  In 
Modoc  Land  etc.  Co.  v.  Booth,  102  Cal.  151,  36  Pac.  431,  the 
court  says:  "It  seems  clear,  however,  that  in  no  case  should 
a  riparian  owner  be  permitted  to  demand,  as  of  right,  the  in- 
tervention of  a  court  of  equity  to  restrain  all  persons  who 
are  not  riparian  owners  from  diverting  any  water  from  the 
stream  at  points  above  him,  simply  because  he  wishes  to  see 
the  stream  flow  by  or  through  his  land  undiminished  and  un- 
obstructed. In  other  words,  a  riparian  owner  ought  not  to  be 
permitted  to  invoke  the  power  of  a  court  of  equity  to  restrain 
the  diversion  of  water  above  him  by  a  nonriparian  owner, 
when  the  amount  diverted  would  not  be  used  by  him  and 
would  cause  no  loss  or  injury  to  him  or  his  land,  present  or 
prospective,  but  would  greatly  benefit  the  party  diverting  it. 
If  this  be  not  so,  it  would  follow,  for  example,  that  an  owner 
of  land  bordering  on  the  Sacramento  river,  in  Yolo  county, 
could  demand  an  injunction  restraining  the  diversion  of  any 
water  from  that  river  for  use  in  irrigating  nonriparian  lands 
in  Glenn  or  Colusa  county.  And  yet  no  one  probably  would 
expect  such  an  injunction,  if  asked  for,  to  be  granted,  or,  if 
granted,  to  be  sustained." 

In  Edgar  v.  Stevenson,  70  Cal.  286,  11  Pac.  704,  it  was  held 
that  a  riparian  proprietor  who  has  appropriated  and  uses 
all  the  water  of  a  stream  crossing  his  land,  as  it  ordinarily 
flows,  cannot  restrain  the  diversion  during  times  of  extraor- 
dinary high  water  of  the  surplus  not  used  or  appropriated 
by  him.  (See,  also,  Eeilbron  v.  '76  Land  etc.  Co.,  80  Cal. 
189,  22  Pac.  62 ;  Black's  Pomeroy  on  Water  Rights,  sec.  75.) 

Judgment  affirmed. 


,\ 

Lux  v.  HAGGIN.  71 


Estoppel — Mexican  Law — Public  Lands  of  the  United  States 
Held  as  Private — Rights  of  Riparian  Proprietor  and  Sub- 
sequent Appropriator — Common  Law  not  Abrogated — 
Constitutional  Principles — Appropriation  not  Common- 
law  Doctrine, 

CHARLES  LUX  et  al.,  Appellants,  v.  JAMES  B.  HAGGIN 
et  al.,  THE  KERN  RIVER  LAND  AND  CANAL  COM- 
PANY, Respondents. 

(69  Cal.  255,  10  Pac.  674.) 

McKIXSTRY,  J. — The  question  being.  Can  a  private  cor- 
poration divert  the  waters  of  a  watercourse,  and  thereby  de- 
prive the  riparian  proprietors  of  all  use  of  the  same,  without 
compensation  made  or  tendered  to  such  proprietors?  held: 

1.  The  owners  of  land  by  or  through  which  a  watercourse 
naturally  and  usually  flows  have  a  right  of  property  in  the 
waters  of  the  stream. 

2.  This  property  may  be  taken  for  a  public  use,  just  com- 
pensation being  first  made,  or  paid  into  court. 

"Water  to  supply  "farming  neighborhoods"  is  a  public  use. 
And  it  is  for  the  legislature  to  determine  whether,  in  the  ex- 
ercise of  the  power  of  eminent  domain,  it  is  necessary  or 
expedient  to  provide  further  legal  machinery  for  the  appro- 
priation (on  due  compensation)  of  private  rights  to  the  flow 
of  running  streams  and  the  distribution  of  waters  thereof  to 
public  uses. 

3.  But  one  private  person  cannot  take  his  property  from 
another,  either  for  the  use  of  the  taker  or  for  an  alleged  pub- 
lic use,  without  any  compensation  paid  or  tendered.     (Const., 
art.  1,  sec.  14.) 

4.  Riparian  owners  may  reasonably  use  water  of  the  stream 
for  purposes  of  irrigation. 

5.  The  court  below  erred  in  rejecting  certain  evidence  of- 
fered by  the  appellants. 

This  action  was  commenced  by  Charles  Lux,  Henry  Miller, 
James  C.  Crocker,  and  others,  as  plaintiffs,  against  James  B. 
Haggin  and  many  individuals  and  corporations,  as  defendants. 
By  dismissals  and  amendments,  Lux,  Miller  and  Crocker  be- 


72  WATER  EIGHTS  AND  IRRIGATION  LAW. 

came  the  only  plaintiffs,  and  the  Kern  River  Land  and  Canal 
Company  the  sole  defendant.  Since  the  amended  complaint 
was  filed  the  suit  has  been  prosecuted  to  obtain  a  decree  en- 
joining the  defendant,  the  Kern  River  Land  and  Canal  Com- 
pany, from  diverting  waters  of  Kern  river,  which,  it  is  alleged, 
had  flowed  down  a  watercourse  known  as  Buena  Vista  slough, 
through  lands  of  the  plaintiffs  described  in  the  complaint, 
and  which  (if  not  diverted)  would  have  continued  so  to  flow. 
Plaintiffs  have  appealed  from  a  judgment  in  favor  of  the  de- 
fendant, and  from  an  order  denying  a  new  trial. 

Before  proceeding  to  decide  what  are  the  respective  rights 
of  riparian  proprietors  and  appropriators  of  water,  or  to  in- 
quire into  certain  alleged  errors  of  the  court  in  rejecting  evi- 
dence offered  by  the  plaintiffs  at  the  trial  below,  we  propose 
to  consider  points  made  by  respondent,  which,  if  well  taken, 
demanded  an  affirmance  of  the  judgment,  even  though  "the 
common  law"  as  to  riparian  rights  now  prevails,  or  formerly 
prevailed,  in  this  state.  .  .  . 

II.     The  plaintiffs  are  not  estopped  from  maintaining  this  ^ 
action  by  reason  of  their  assent  to  and  approval  of  certain 
acts  of  a  third  person, — the  Kern  Valley  Water  Company. 

The  next  question  is  cognate  to  the  one  just  discussed.  It 
arises  on  certain  findings  from  which,  respondent  contends, 
it  appears  plaintiffs  lost  their  right  to  complain  of  any  diver- 
sion of  water  before  the  commencement  of  this  action. 

The  court  below  found : 

"That  the  waters  of  Kern  river  do  not,  and  never  did, 
naturally  and  usually  flow  to,  through,  along  by,  over,  or 
upon  the  said  lands  of  plaintiffs,  or  any  part  thereof;  and 
that  until  the  year  1876,  whatever  of  the  water  of  Kern  river 
flowed  to  or  reached  the  said  lands,  or  any  part  thereof,  was 
from  the  unusual  and  extraordinary  overflow  of  said  river, 
or  of  Kern  and  Buena  Vista  lakes,  or  from  the  percolation 
and  seepage  in  these  findings  mentioned. 

"That  in  December,  1875,  one  Souther  commenced,  and  in 
January,  1876,  completed,  a  dam  across  Buena  Vista  slough, 
at  a  point  designated  on  the  map  hereto  annexed  as  Cole's 
crossing,  on  or  about  section  five  (5),  township  thirty-one  (31) 
south,  range  twenty-five  (25)  east,  Mount  Diablo  base  and 
meridian,  and  south  of  where  the  waters  of  New  river  enter 


Lux  v.  HAGGIN.  73 

Buena  Yista  slough,  and  thereby,  at  said  point,  checked  the 
natural  flow  of  the  waters  of  said  river  through  said  slough 
into  Buena  Vista  and  Kern  lakes,  and  caused  the  waters  there 
flowing  to  take  a  northward  course  and  away  from  the  said 
lakes.  That  in  March,  1876,  the  pressure  of  the  waters  against 
said  dam  broke  through  the  same,  and  said  river  resumed  its 
natural  flow  to  Buena  Vista  and  Kern  lakes.  That  during 
the  said  interval  of  its  flow  northward,  the  waters  of  said 
New  river  flowed  along  said  Buena  Vista  slough  and  the  ad- 
jacent country,  to  and  over  Buena  Vista  swamp. 

"That  in  the  fall  of  1876,  certain  parties  commenced  the 
construction  of  two  certain  canals,  which  are  correctly  laid 
down  on  the  map  hereto  annexed,  and  marked  respectively 
'East  Side  canal'  and  'Kern  Valley  Water  Company's  Canal.' 
The  said  East  Side  canal  commences  on  section  fourteen  (14), 
township  thirty  (30)  south,  range  twenty-four  (24)  east,  and 
extends  thence  some  three  (3)  miles  north  on  the  eastern  side 
of  the  said  Buena  Vista  swamp,  and  does  not  touch  any  of 
said  lands  of  the  plaintiffs.  The  other  canal,  heading  on  sec- 
tion fourteen  (14),  township  thirty  (30)  south,  range  twenty- 
four  (24)  east,  as  at  present  constructed,  extends  northward 
some  twenty-four  miles,  is  one  hundred  and  twenty  feet  wide 
on  the  bottom,  one  hundred  and  forty  feet  wide  on  the  top, 
and  ten  feet  deep,  with  a  fall  of  one  foot  per  mile,  and  capable 
of  carrying  more  than  twelve  hundred  cubic  feet  of  flowing 
water  per  second,  and  terminates  at  a  point  outside  of  said 
lands  of  plaintiffs.  That  in  June,  1877,  the  Kern  Valley 
Water  Company,  a  corporation  organized  and  existing  under 
the  laws  of  California,  for  the  purpose  of  acquiring  canals 
and  water  rights  in  said  county  of  Kern  and  elsewhere  within 
this  state,  to  be  used  or  disposed  of  for  irrigation,  transpor- 
tation, domestic,  mechanical,  and  other  purposes,  took  posses- 
sion and  control  of  said  canals,  and  thenceforth  continued 
the  construction  thereof,  northward  toward  the  lake  known 
as  Tulare  lake,  designated  on  said  map.  That  in  the  fall  of 
the  year  1877,  the  said  Kern  Valley  Water  Company  recon- 
structed the  said  dam  at  Cole's  crossing;  and  in  connection 
therewith  constructed  a  levee  extending  westward  to  the  bluffs 
on  high  ground,  and  running  eastward  from  said  dam  about 
one  and  one-quarter  miles,  as  shown  on  said  map,  thereby 


74  WATER  EIGHTS  AND  IRRIGATION  LAW. 

preventing  the  waters  of  Kern  river  from  flowing  to  Bueflu 
Vista  lake,  and  turning  the  same  northward  to  their  said 
two  canals.  That  at  the  head  of  said  canals,  and  in  conjunc- 
tion therewith,  the  said  Kern  Valley  Water  Company,  in 
1877,  constructed  a  certain  other  dam  and  levee,  extending 
completely  across  the  said  Buena  Vista  swamp,  as  shown  on 
said  map,  and  thereby  completely  obstructed  and  prevented 
the  natural  flow  of  any  water  into,  through  or  over  said 
swamp  northward  of  said  last-mentioned  levee,  and  appropri- 
ated and  took  possession  and  control  of  all  the  waters  reach- 
ing said  levee,  and  turned  the  same  into  the  said  canals.  That 
the  said  dam  and  levee  last  mentioned  are  some  distance  south- 
ward from  the  southernmost  part  of  the  said  lands  of  the 
plaintiffs,  and  from  and  after  their  construction  no  water 
has  naturally  flowed,  or  could  naturally  flow,  beyond  the  head 
of  said  canals,  or  to  or  upon  .the  said  lands  of  the  plaintiffs, 
or  any  part  thereof. 

"That  the  construction  of  the  canals,  dams,  and  levees  de- 
scribed in  the  preceding  finding  was  undertaken  and  prose- 
cuted with  the  knowledge,  consent,  and  approval  of  the  plain- 
tiffs. 

"That  the  levee  last  described  in  said  preceding  finding 
was  constructed  for  the  purpose  of  diverting  all  the  water 
reaching  said  levee  into  the  said  canals,  and  such  levee  does 
entirely  obstruct,  and  since  its  construction  has  obstructed, 
the  natural  flow  of  any  water  northward  in  said  Buena  Vista 
swamp,  beyond  said  levee,  and  diverts  the  same  into  said 
canals,  and  that  the  plaintiffs,  at  and  before  the  time  of  the 
commencement  of  the  construction  of  the  said  levee,  knew  of 
the  purposes  thereof,  and  approved  the  same,  and  knew  of 
the  beginning  and  prosecution  of  the  construction  thereof, 
and  consented  to  and  approved  of  such  construction.  That 
said  canals  and  levee  were  constructed  at  great  expense,  and 
because  of  and  in  reliance  upon  the  said  approval  and  consent 
of  the  plaintiffs,  and  but  for  such  approval  and  consent, 
would  not  have  been  constructed. ' ' 

The  notice  of  appropriation  of  seventy-four  thousand  inches 
of  water  was  posted  and  filed  for  record  by  defendant's  as- 
signors May  4,  1875.  Their  subsequent  acts  (it  may  here  be 
conceded)  related  back  to  the  posting  and  filing  of  the  notice. 


Lux  v.  HAGGIN.  75 

It  may  well  be  doubted  whether  the  evidence  sustains  the 
finding  that  the  plaintiffs  consented  to  and  approved  of  the 
canals  and  dams  mentioned  in  the  foregoing  findings.  We 
shall  assume,  however,  that  there  was  a  substantial  conflict  in 
the  evidence  in  that  regard. 

The  building  of  the  two  dams,  and  the  assent  of  the  plain- 
tiffs thereto,  as  found  by  the  court,  intervened  between  the 
appropriation  by  defendant 's  assignors  and  the  commencement 
of  this  action. 

The  construction  of  the  dam  at  Cole's  crossing,  with  or 
without  the  plaintiffs'  consent,  is  unimportant  (with  reference 
to  the  question  we  are  about  to  consider)  if  the  waters  of  Kern 
river  have  never  naturally  or  usually  flowed  to  their  lands. 
The  plaintiffs  did  not  become  riparian  proprietors  by  reason 
of  a  diversion  of  the  waters  of  Kern  river  toward  their  land 
(caused  by  the  dam  at  Cole's  crossing),  with  any  right  to 
complain  of  an  appropriation  made  by  the  defendant  or  its 
assignors  above  Cole's  crossing  and  before  the  dam  was  con- 
structed at  that  place.  And,  on  the  other  hand,  if  part  of 
the  waters  of  Kern  river,  in  their  usual  and  natural  flow, 
reached  the  lands  of  plaintiffs  (and  they  were  deprived  of  it 
by  defendant),  it  is  immaterial  that  more  water  was  turned 
in  their  direction  by  the  dam  at  Cole's  crossing. 

It  is  said  by  appellants  that  since  the  court  found  the 
waters  of  Kern  river  never  naturally  and  usually  flowed  to 
the  lands  of  the  plaintiffs,  the  findings  last  recited  must  be 
read  as  a  finding  that  the  levee  near  the  head  of  the  canals 
was  built  for  the  purpose  of  diverting,  and  did  divert,  into 
the  canals  of  the  Kern  Valley  Water  Company,  only  the 
water  turned  toward  plaintiffs'  lands  by  the  dam  at  Cole's 
crossing  and  the  waters  of  extraordinary  overflows. 

But  as  the  court  found  that  the  levee  last  mentioned  pre- 
vented the  passage  of  any  water  to  the  northward  thereof, 
the  respondent  is  entitled  to  the  benefits  of  the  findings  in  the 
alternative, — that  is,  as  declaring  that,  even  if  the  waters  of 
Kern  river  in  their  natural  and  usual  flow  would  reach  the 
plaintiffs'  lands,  the  plaintiffs  had  consented  to  the  erection 
of  a  dam  or  levee  by  the  Kern  Valley  Water  Company,  which 
diverted  all  such  waters  from  their  lands. 


76  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Section  811  of  the  Civil  Code  provides  that  the  servitude 
may  be  extinguished  by  the  performance  of  any  act  by  the 
owner  of  the  servitude,  or  with  his  assent, — upon  either  the 
dominant  or  servient  tenement, — which  is  inconsistent  with 
its  nature  or  exercise.  This  seems  to  be  a  recognition  and 
statutory  declaration  of  the  rule  which  Professor  Washburn 
says  has  become  well  settled,  that  if  the  owner  of  a  dominant 
estate  do  acts  thereon  which  permanently  prevent  his  enjoy- 
ing an  easement,  the  same  is  extinguished,  or  if  he  authorize 
the  owner  of  the  servient  estate  to  do  upon  the  same  that 
which  prevents  the  dominant  estate  from  any  longer  enjoying 
the  easement,  the  effect  will  be  to  extinguish  it.  (Washburn 
on  Easements  and  Servitudes,  560.) 

The  same  writer  says  that,  as  forming  the  subject  of  prop- 
erty in  connection  with  realty,  water  may  be  viewed  in  two 
lights :  one,  as  one  of  the  elements  of  which  an  estate  is  com- 
posed; the  other,  as  being  valuable  alone  for  its  use,  to  be 
enjoyed  in  connection  with  the  occupation  of  the  soil.  "In 
the  latter  sense  it  constitutes  an  incorporeal  hereditament, 
to  which  the  term  'easement'  is  (has  been)  applied."  (Wash- 
burn  on  Easements  and  Servitudes,  207.)  The  flow  of  the 
water  to  and  over  the  riparian  lands  is  not  a  mere  easement. 
(Stoker  v.  Singer,  8  El.  &  B.  36.)  But  the  riparian  right, 
while  more  than  an  easement,  may  be  said  to  include  the 
qualities  of  an  easement. 

In  section  801  of  the  Civil  Code,  among  "land  burdens,  or 
servitudes  upon  land,"  are  enumerated  "the  right  of  receiv- 
ing water  from  land,"  and  "the  right  of  having  water  flow 
without  diminution  or  disturbance  of  any  kind," — which  last 
includes  the  right  to  have  a  natural  watercourse  flow,  subject 
to  such  diminution  as  results  necessarily  from  a  reasonable 
use  by  a  superior  riparian  proprietor. 

It  has  been  held  that  when  the  lower  proprietor  licenses  the 
upper  to  divert  water  which  would  flow  to  the  lands  of  the 
licenser,  and  the  licensee  has  executed  the  license,  the  licenser 
does  not  grant  the  servitude  within  the  prohibition  of  the  stat- 
ute of  frauds,  but  rather  is  estopped  from  asserting  any  right 
in  it.  It  is  not  necessary  to  enter  into  that  question.  Whether 
the  executed  license  would  or  would  not  be  an  executed  con- 
tract; whether  the  transaction  would  or  would  not  operate  a 


Lux  v.  HAGGIN.  77 

transfer  from  the  licenser  to  the  licensee,  section  811  of  the 
Civil  Code  declares  that  the  effect  is  to  "extinguish"  the  servi- 
tude. The  legislature  had  as  much  power  to  make  this  enact- 
ment as  to  pass  a  statute  of  frauds. 

The  possession  of  the  Kern  Valley  Water  Company,  at  the 
points  where  water  was  taken,  was  perhaps  some  evidence  of 
its  riparian  ownership.  But  if  the  act  is  to  be  done  by  the 
licensee  on  a  third  person's  estate,  and  the  license  be  executed, 
it  cannot  be  revoked.  (Washburn  on  Easements  and  Servi- 
tudes, 563.) 

Appellants  claim  that  the  evidence  with  respect  to  the  con- 
sent of  plaintiffs  to  the  diversion  by  the  Kern  Valley  Water 
Company  was  not  admissible  under  the  allegations  of  the  an- 
swer, because  defendant  did  not  plead  therein  the  facts  estab- 
lishing license  and  its  execution.  Counsel  refer  to  Humphreys 
v.  McCall,  9  Cal.  59,  70  Am.  Dec.  621,  where  it  was  held,  in  an 
action  for  damages  for  the  diversion  of  water  appropriated  by 
plaintiffs  on  the  public  lands, — the  defendants  having  pleaded 
the  general  issue  only, — that  it  was  not  competent  for  the  de- 
fendants to  prove  that  a  prior  claim  to  the  water  existed  in  a 
third  person,  but  that  such  defense  should  have  been  spe- 
cially pleaded.  That  case  turned  on  a  priority  of  occupation 
as  between  the  plaintiffs  and  defendants,  and  even  if  a  still 
earlier  occupation  by  a  third  person  had  been  pleaded,  it 
would  have  constituted  no  defense  to  an  action  brought  for 
a  diversion  of  water  appropriated  by  plaintiffs  previous  to 
any  appropriation  by  the  defendants,  unless  the  defendants 
connected  themselves  with  the  third  person, — the  first  ap- 
propriator.  In  the  case  now  before  us,  it  was  for  the  plain- 
tiffs to  show  that  they  were  entitled  to  the  flow  of  the  stream, 
or  of  some  part  of  it,  when  this  action  was  commenced.  If 
their  right  to  the  flow  was  legally  extinguished  prior  to  the 
commencement  of  the  action,  we  cannot  perceive  why  defend- 
ant was  not  entitled  to  prove  the  fact  under  the  denials  of 
the  answer. 

If,  therefore,  the  findings  last  above  referred  to  are  sus- 
tained by  the  evidence,  or  there  is  a  substantial  conflict  in 
the  evidence  with  respect  to  the  matters  set  forth  in  those 
findings,  the  judgment  and  order  must  be  affirmed, 


78  WATER  EIGHTS  AND  IRRIGATION  LAW. 

It  is  to  be  observed  that  plaintiffs  count  upon  their  owner- 
ship of  the  banks  of  Buena  Vista  slough.  If  they  licensed 
the  Kern  Valley  Water  Company  permanently  to  divert  the 
waters  from  the  slough,  and  by  expenditures  on  the  part  of 
the  company  the  license  was  executed,  plaintiffs  cannot  re- 
cover, whatever  the  purposes  of  the  diversion,  although  these 
included  a  purpose  to  benefit  the  lands  of  plaintiffs  by  drain- 
ing them,  and  the  conduct  of  the  water  to  a  point  below  such 
lands,  or  even  a  purpose  to  irrigate  the  plaintiffs'  lands 
through  gates  in  the  canals  of  the  company  at  points  sepa- 
rated from  the  channel  of  the  slough.  However,  it  might 
be  (supposing  plaintiffs  had  counted  on  their  ownership  of 
the  banks  of  one  of  the  canals),  if  it  appeared  that  all  the 
stock  of  the  Kern  Valley  Water  Company  was  owned  by  the 
riparian  proprietors  below  the  places  of  diversion  of  water 
from  the  slough, — so  that  the  corporation  might  be  treated 
as  the  mere  instrumentality  through  which  the  riparian  pro- 
prietors carried  out  a  design  agreed  upon  among  themselves, 
to  change  the  channel  of  the  slough  in  such  manner  as  to 
provide  more  effectually  for  the  irrigation  of  their  lands, — 
here  such  facts  do  not  appear  from  the  findings  or  evidence. 
The  corporation  was  a  distinct  entity,  in  which  the  plain- 
tiffs were  in  no  way  interested,  except  that  there  was  evi- 
dence tending  to  prove  that  one  (perhaps  all)  of  them  was 
a  stockholder  in  it.  Besides,  as  we  have  seen",  the  plaintiffs 
do  not  base  their  claim  for  relief  on  the  statement  in  their 
bill  of  complaint  that  they  are  riparian  proprietors  on  the 
new  or  artificial  watercourse. 

If,  however,  it  should  be  conceded  that  all  the  plaintiffs 
consented  to  and  approved  of  the  construction  by  the  Kern 
Valley  Water  Company  of  the  dam  or  levee  across  the  swamps 
immediately  below  the  east  side  and  Kern  Valley  Water  Com- 
pany's canals,  this  fact  of  itself  would  not  entirely  extinguish 
the  rights  of  plaintiffs  to  the  flow  of  the  watercourse,  unless 
the  dam — as  built  and  consented  to  by  plaintiffs — obstructed 
and  prevented  the  natural  flow  of  every  portion  of  the  water 
(except,  perhaps,  mere  leakage)  through  Buena  Vista  slough 
to  the  land  of  the  plaintiffs. 

The  court  below  found  that  the  levee  made  by  the  Kern 
iValley  Water  Company  prevented  "the  natural  flow  of  any 


Lux  v.  HAGGIN.  79 

water  into,  through,  or  over  said  swamp  northward  of  said 
levee,"  and  that  after  the  construction  of  said  levee  or  dam, 
"no  water  has  naturally  flowed,  or  could  flow,  northward  and 
beyond  the  head  of  said  canals  to  or  upon  said  land  of  the 
plaintiffs,  or  any  part  thereof." 

But  there  was  uncontradicted  testimony  that  there  was  a 
headgate  in  the  dam  or  levee,  at  a  place  designated  by  the 
witnesses  as  the  place  where  the  levee  crossed  the  slough, 
which  was  at  times  open  and  through  which,  when  open,  water 
flowed  in  the  slough. 

The  court  did  not  find  the  existence  of  the  headgate,  and 
there  is  neither  finding  nor  definite  and  distinct  evidence  from 
which  can  be  ascertained  what  was  the  arrangement  or  agree- 
ment between  the  plaintiffs  and  the  water  company,  if -any, 
with  reference  to  the  control  and  management  of  the  head- 
gate.  The  court  found  that  the  plaintiffs  consented  to  the 
building  of  the  dam,  and  found  that,  as  built,  the  dam  en- 
tirely obstructed  the  flow  of  the  water. 

It  is  urged  by  appellants  that  the  very  fact  of  the  existence 
of  the  headgate  in  the  slough  unexplained  proves  that  plain- 
tiffs retained  a  right  to  water  flowing  there.  But  it  is  enough 
if  the  facts  proved  do  not  affirmatively  establish  that  the 
easement  was  entirely  extinguished.  The  levee  as  constructed 
did  not  permanently  and  continuously  stop  the  flow  of  all 
the  water,  and  the  license  of  plaintiffs  was  no  broader  than 
its  execution. 

Although  the  defendant  was  not  bound  to  plead  a  license 
given  and  executed  prior  to  the  commencement  of  the  suit, 
the  burden  was  on  the  defendant  of  proving  that  plaintiffs 
had  assented  to  acts  of  the  Kern  Valley  Water  Company 
which  permanently  deprived  them  of  all  the  water.  It  was 
by  such  assent  only  that  they  could  estop  themselves  from 
claiming  the  benefit  of  any  of  the  water. 

It  may  be  contended,  on  behalf  of  respondent,  that  the 
presumption  is  that  the  gate  built  by  the  Kern  Valley  Water 
Company,  as  part  of  its  work,  was  under  the  control  of  the 
company,  and  in  the  absence  of  evidence  of  a  reservation  by 
plaintiffs  of  a  right  to  enter  upon  the  possession  of  the  com- 
pany and  open  the  gate, — or  of  a  right  to  demand  that  the 
Kern  Valley  Water  Company  should  open  it  whenever  plain- 


80  WATER  RIGHTS  AND  IRRIGATION  LAW. 

tiffs  might  choose  to  exercise  the  right,  or  open  it  at  definite 
times  or  for  certain  periods, — the  court  below  was  justified 
in  finding  that  plaintiffs  consented  to  a  permanent  occlusion 
of  all  the  waters ;  and  that  such  finding  included  and  implied 
a  finding  that  the  license  was  not  limited  or  restricted. 

The  question  is  not  free  from  difficulty.  It  is  apparent  the 
court  below  considered  the  facts  that  the  headgate  was  there, 
that  it  was  at  times  open,  and  that  when  open  water  flowed 
through  it,  as  immaterial  factors  in  the  evidence,  on  which  it 
based  its  conclusion  that  the  dam  as  erected  and  assented  to 
entirely  obstructed  the  flow  of  the  stream.  The  court  in  effect 
held  that  it  was  for  the  plaintiffs  to  prove  affirmatively  the 
reservation  of  a  right  to  the  flow  at  their  option  or  at  specified 
times.  Doubtless,  the  conclusion  that  plaintiffs  licensed  a 
diversion  of  all  the  waters  was  based  in  part  upon  the  pre- 
sumption (in  the  absence  of  evidence  to  the  contrary)  that 
it  was  intended  the  water  company  should  have  entire  control 
of  its  own  headgate;  but  this,  it  is  argued,  is  a  presumption 
of  fact  which  the  court  could  properly  indulge. 

Suppose  the  single  issue  between  these  parties  was,  whether 
the  license  was  general,  extending  to  all  the  waters,  or  was 
limited,  the  burden  of  showing  its  general  character  being  on 
the  defendant.  In  such  case,  it  might  be  asked,  would  not  the 
defendant  have  made  out  its  case,  'prima  facie,  at  least,  by 
proving  the  consent  of  the  plaintiffs  to  the  construction  of  the 
levee,  although  it  was  built  with  a  gate  through  which  waters 
might  flow  if  it  should  be  opened?  Would  the  possible  fact 
— not  proved — that  plaintiffs  may  have  reserved  the  right 
to  have  the  gate  opened  when  they  demanded  it,  or  for  a 
definite  part  of  future  time  as  time  should  pass,  be  considered 
as  overcoming  the  presumption  that  the  Kern  Valley  Water 
Company  has  the  control  of  its  own  property?  If  so,  it  may 
be  claimed,  the  case  must  constitute  an  exception  to  the  gen- 
eral rule  that  the  burden  of  proof  is  cast  upon  the  opposite 
party  when  the  party  having  the  affirmative  has  established 
the  issue  on  his  part  prima  fade. 

But  here  the  burden  was  on  the  defendant  of  proving  that 
the  right  of  the  plaintiffs  to  the  flow  of  all  the  water  was 
extinguished.  It  would  not  have  been  sufficient  that  it  was 


Lux  v.  HAGGIN.  81 

made  to  appear  that  plaintiffs  had  assented  to  a  diversion  of 
a  portion  of  the  waters,  any  more  than  it  would  have  been 
sufficient  to  prove  that  plaintiffs  had  granted  a  portion  of  the 
waters.  In  either  case  the  plaintiffs  would  not  have  lost  nor  - 
parted  with  the  right  to  be  protected  in  the  enjoyment  of  the 
waters  they  retained. 

Until  it  was  made  to  appear  that  plaintiffs  had  lost  the 
right  to  the  flow  of  any  part  of  the  stream,  the  presumption 
would  be  that  they  retained  a  right  to  all.  And  in  presence 
of  the  fact  that  the  wrork  they  assented  to  did  not  actually 
deprive  them  of  all  the  water,  their  right  to  the  water  which 
flowed  through  the  gate,  either  continuously  or  at  intervals, 
was  not  extinguished.  To  apply  the  presumption  that  every 
man  has  a  right  to  control  his  own  property  for  the  benefit 
of  the  defendant  alone  is  to  assume,  not  only  that  the  gate 
belonged  to  the  Kern  Valley  Water  Company,  but  that  the 
water  also  (or  its  exclusive  use)  which  flowed  through  the 
gate  belonged  to  that  company,  in  entire  disregard  of  the 
presumption  that  the  plaintiffs  retained  every  right  to  the 
flow  of  the  stream  which  was  not  affirmatively  shown  to  have 
been  lost.  Thus  a  disputable  presumption  (applicable  to  the 
use  of  the  gate)  would  be  made  to  overthrow  a  presumption 
applicable  to  the  use  of  the  water.  The  defendant  could  not 
establish  that  plaintiffs  were  estopped  from  asserting  that 
they  had  a  right  to  the  flow  of  any  part  of  the  water, — either 
prima  facie  or  conclusively, — except  by  proving  facts  which 
necessarily  precluded  the  retention  by  plaintiffs  of  any  part 
of  it.  The  defendant  'could  not  rely  upon  a  presumption 
drawn  from  facts  which  did  not  necessarily  exclude  a  reten- 
tion by  plaintiffs  of  a  right  to  the  flow  of  some  of  the  waters, 
in  opposition  to  the  legal  proposition  that  plaintiffs  had  lost 
only  the  right  which  was  affirmatively  proved  to  have  been 
extinguished. 

Of  course,  on  a  retrial  of  this  cause  the  evidence  may  estab- 
lish an  extinguishment  of  the  plaintiffs'  rights — if  they  ever 
had  any — to  the  flow  of  every  portion  of  the  waters  of  Buena 
Vista  slough  to  their  lands.  On  this  appeal  we  confine  our- 
selves to  the  findings  and  testimony  in  the  transcript  now 
here. 

6 


82  WATER  RIGHTS  AND  IRRIGATION  LAW. 

III.  While  the  argument  ab  inconvenienti  should  liave  its 
proper  weight  in  ascertaining  what  the  law  is,  there  is  no  "pub- 
lic policy ' '  which  can  empower  the  courts  to  disregard  the  law  ; 
or  because  of  an  asserted  benefit  to  many  persons  (in  itself 
doubtful)  to  overthrow  the  settled  law.  This  court  has  no 
power  to  legislate, — especially  none  to  legislate  in  such  man- 
ner as  to  deprive  citizens  of  their  vested  rights. 

The  riparian  owner's  property  in  the  water  of  a  stream 
may  (on  payment  of  due  compensation  to  him)  be  taken  to 
supply  "farming  neighborhoods"  with  water. 

In  case  further  legislation  shall  be  deemed  expedient  for  the 
distribution  of  water  to  public  uses  (the  private  right  being 
paid  for),  the  validity  of  such  further  legislation  is  to  be 
determined  after  its  enactment,  if  its  validity  shall  then  be 
questioned. 

The  respondent  contends  that  it  is  entirely  immaterial  what 
errors  were  committed  by  the  court  below,  upon  the  supposi- 
tion that  plaintiffs,  as  riparian  proprietors,  have  some  rights 
to  the  flow  of  the  stream  through  their  lands, — since  the 
plaintiffs  have  in  fact  no  right  to  the  use  of  the  waters  as 
against  the  defendant,  which  has  appropriated  them  in  ac- 
cordance with  the  provisions  of  the  Civil  Code ;  and  this,  not- 
withstanding the  statute  of  1850,  adopting  the  common  law 
as  "the  rule  of  decision,"  and  the  section  of  the  Civil  Code 
providing  that  "the  rights  of  riparian  proprietors  are  not 
affected"  by  the  provisions  relating  to  appropriations  of 
waters.  (Sec.  1422.) 

This  court  has  held  that  the  property  of  a  riparian  owner 
in  the  waters  flowing  through  his  land  may,  upon  due  com- 
pensation to  him,  be  condemned  to  the  public  use  by  proceed- 
ings initiated  by  a  corporation  organized  to  supply  a  town 
with  water.  (St.  Helena  Co.  v.  Forbes,  62  Cal.  182,  45  Am. 
Rep.  659.) 

In  the  learned  opinions  of  Justices  Ross  and  Myrick  in  that 
case,  the  right  of  the  riparian  proprietor  to  the  use  of  the 
water  is  designated  "property,"  an  "incident  of  property  in 
the  land  inseparably  annexed  to  the  soil, ' '  as  part  and  parcel 
of  it,  "an  incorporeal  hereditament  appertaining  to  the  land." 
The  main  question  in  the  case  was  whether  the  code  provided 


Lux  v.  HAQGIN.  83 

for  a  condemnation  of  that  species  of  property  to  public  uses. 
The  question  was  answered  in  the  affirmative. 

And  it  has  been  held  in  New  York  that  the  taking  of  a 
stream  of  water  (on  due  compensation)  for  the  supply  of  a 
town  was  a  proper  exercise  of  the  power  of  eminent  domain. 
(Gardner  v.  Newburgh,  2  Johns.  Ch.  162,  7  Am.  Dec.  526.) 
On  like  principles,  the  same  property  right  may  be  taken  for 
any  public  use.  In  every  case,  however,  the  provisions  of  the 
statute  as  to  the  mode  and  manner  of  conducting  the  con- 
demnation proceedings  must  be  strictly  pursued.  Private 
property  may  be  taken  or  damaged  for  public  use,  due  com- 
pensation being  made  or  paid  into  court.  (Const.,  art.  1, 
sec.  14.)  But  another  provision  of  the  supreme  law  is  equally 
operative:  "No  person  shall  be  deprived  ...  of  property 
without  due  process  of  law."  (Id.,  art.  1,  sec.  13.)  A  legis- 
lative act  declaring  the  necessity  for  taking  the  property  for 
public  use,  or  the  judgment  of  a  court  that  the  necessity  ex- 
ists when  the  statute  puts  the  power  in  a  court,  is  "the  law  of 
the  land."  (Cooley's  Const.  Lim.  528.) 

Section  1001  of  the  Civil  Code  provides : 

"Any  person  may,  without  further  legislation,  acquire  pri- 
vate property  for  any  use  specified  in  section  1238  of  the  Code 
of  Civil  Procedure,  either  by  consent  of  the  owner  or  by  pro- 
ceedings had  under  the  provisions  of  title  7,  part  3,  of  the 
Code  of  Civil  Procedure;  and  any  person  seeking  to  acquire 
property  for  any  of  the  uses  mentioned  in  such  title  is  'an 
agent  of  the  state,'  or  a  'person  in  charge  of  such  use,' 
within  the  meaning  of  those  terms  as  used  in  such  title.  This 
section  shall  be  in  force  from  and  after  the  fourth  day  of 
April,  1872."  .  .  . 

Now,  the  drinking  of  water  is  everywhere  spoken  of  as  a 
"natural,"  or  at  least  primary,  use.  Yet,  when  water  is  en- 
tirely taken  away  from  the  riparian  proprietor  to  supply  a 
city  or  town,  the  use  of  it  has  never  been  limited  to  that  which 
may  be  required  merely  for  the  support  of  the  lives  of  the 
citizens;  but  the  water  thus  appropriated  to  the  "public  use" 
may  be  consumed  also  for  lavation,  and  for  all  other  purposes 
to  which  the  element  is  ordinarily  applied,  as  for  irrigating 
private  plats  or  yards  and  public  squares  and  parks,  the  water- 


84  WATER  EIGHTS  AND  IRRIGATION  LA\V. 

ing  of  the  streets,  etc.  It  would  seem  utterly  impracticable 
to  limit  the  uses  to  which  the  citizens  or  villagers  may  apply 
it;  or  to  the  quantity  to  be  used  by  each,  except  by  reference 
to  the  quantity  introduced.  In  such  cases,  the  riparian  pro- 
prietor may  be  deprived  of  its  use  for  primary  purposes  that 
it  may  be  devoted  to  such  as  have  generally  been  deemed 
secondary.  Why,  then,  may  he  not  be  deprived  of  the  water 
when  the  lawmakers  decide  that  its  application  elsewhere  for 
irrigation  is  a  public  use? 

It  is  the  rule  that,  where  there  is  any  doubt  whether  the 
use  to  which  the  property  is  proposed  to  be  devoted  is  of  a 
public  or  private  character,  it  is  a  matter  to  be  determined 
by  the  legislature;  and  the  courts  will  not  undertake  to  dis- 
turb its  judgment  in  that  regard.  (Stockton  V.  R.  Co.  v. 
Stockton,  41  Cal.  147.)  To  this  yielding  to  the  legislative 
judgment  there  is  but  one  exception ;  that  is,  when  the  prop- 
erty of  the  citizen  is  taken,  or  sought  to  be  taken,  for  a  use  in 
no  sense  public ;  or,  in  the  language  of  Chancellor  Wai  worth 
(Varick  v.  Smith,  5  Paige,  159),  ''where  there  is  no  founda- 
tion for  a  pretense  that  the  public  is  to  be  benefited  thereby." 
(Consolidated  Channel  Co.  v.  Central  Pac.  E.  Co.,  51  Cal. 
269.) 

We  are  not  prepared  to  say  that  the  supply  of  water  to 
"farming  neighborhoods"  for  irrigation  (and  the  code  evi- 
dently means  for  irrigation)  may  not  be  for  a  public  use. 
Indeed,  in  view  of  the  climate  and  arid  soil  in  parts  of  the 
state  (for  this  object  climate  and  soil  may  properly  be  con- 
sidered), it  is  safe  to  say  that  the  supply  for  such  use  may  be 
that  which  the  legislature  has  decided  it  to  be, — a  public  use. 
The  judgment  of  the  legislature  that  it  is  such  ought  not, 
therefore,  to  be  disturbed  by  the  courts. 

It  is  apparent  that  in  deciding  whether  a  use  was  public  the 
legislature  was  not  limited  by  the  mere  number  of  persons  to 
be  immediately  benefited  as  opposed  to  those  from  whom  prop- 
erty is  to  be  taken.  It  must  happen  that  a  public  use  (as  of 
a  particular  wagon  or  railroad)  will  rarely  be  directly  enjoyed 
by  all  the  denizens  of  the  state,  or  a  county  or  city ;  and  rarely 
that  all  within  the  smallest  political  subdivision  can,  as  a  fact, 
immediately  enjoy  every  public  use.  Nor  need  the  enjoyment 
of  a  public  use  be  unconditional.  A  citizen  of  a  municipality 


Lux  v.  HAGGIN.  85 

to  which  water  has  been  brought  by  a  person  or  corporation 
which,  as  agent  of  the  government,  has  exercised  the  power  of 
eminent  domain,  can  demand  water  only  on  payment  of  the 
established  rate,  and  on  compliance  with  reasonable  rules  and 
regulations. 

And  while  the  court  will  hold  the  use  private  where  it  ap- 
pears that  the  government  or  public  cannot  have  any  interest 
in  it,  the  legislature,  in  determining  the  expediency  of  declar- 
ing a  use  public,  may  no  doubt  properly  take  into  considera- 
tion all  the  advantages  to  follow  from  such  action ;  as  the  ad- 
vancement of  agriculture,  the  encouragement  of  mining  and 
the  arts,  and  the  general  though  indirect  benefits  derived  to 
the  people  at  large  from  the  dedication. 

It  may  be  that,  under  the  physical  conditions  existing  in 
some  portions  of  the  state,  irrigation  is  not,  theoretically,  a 
"natural  want" — in  the  sense  that  living  creatures  cannot 
exist  without  it.  But  its  importance  as  a  means  of  producing 
food  from  the  soil  makes  it  less  necessary,  in  a  scarcely  appreci- 
able degree,  than  the  use  of  water  by  drinking  it.  The  gov- 
ernment would  seem  to  have  not  only  a  distant  and  conse- 
quential, but  a  direct,  interest  in  the  use, — therefore  a  public 
use. 

The  words  "farming  neighborhoods"  are  somewhat  in- 
definite; the  idea  sought  to  be  conveyed  by  them  is  more 
readily  conceived  than  put  into  accurate  language.  Of  course, 
"farming  neighborhood"  implies  more  than  one  farm;  but 
it  would  be  difficult  to  say  that  any  certain  number  is  essential 
to  constitute  such  a  neighborhood.  The  vicinage  may  be 
nearer  or  more  distant,  reference  being  had  to  the  populous- 
ness  or  sparseness  of  population  of  the  surrounding  country ; 
but  the  farmers  must  be  so  near  to  each  other — relatively  to 
the  surrounding  settlers — as  to  make  what  in  popular  par- 
lance is  known  as  a  "farming  neighborhood." 

A  very  exact  definition  of  the  word  is  not,  however,  of  para- 
mount importance.  The  main  purpose  of  the  statute  is  to  pro- 
vide a  mode  by  which  the  state,  or  its  agent,  may  conduct 
water  to  arable  lands  where  irrigation  is  a  necessity,  on  pay- 
ment of  due  compensation  to  those  from  whom  the  water  is 
diverted. 


86  WATER  EIGHTS  AND  IRRIGATION  LAW. 

The  same  agent  of  the  state  may  take  water  to  more  than 
one  farming  neighborhood. 

It  must  always  be  borne  in  mind  that  under  the  codes  no 
man  (or  set  of  men)  can  take  another's  property  for  his  own 
exclusive  use. 

Whoever  attempts  to  condemn  the  private  right  must  be 
prepared  to  furnish  (to  the  extent  of  the  water  he  consumes 
and  pays  for)  every  individual  of  the  community  or  com- 
munities, farming  neighborhood  or  farming  neighborhoods, 
to  which  he  conducts  it,  the  consumers  being  required  to  pay 
reasonable  rates  and  being  subjected  to  reasonable  regula- 
tions. And  whether  the  quantity  sought  to  be  condemned  is 
reasonably  necessary  to  supply  the  public  use  in  a  neighbor- 
hood or  neighborhoods  must  be  determined  by  the  court  in 
which  the  proceedings  are  brought  for  condemnation  of  the 
private  right.  .  .  . 

The  Civil  Code  authorizes  any  person,  for  purposes  useful 
to  himself  alone  or  for  the  benefit  of  himself  and  others,  to 
divert  the  waters  of  a  stream,  the  rights  of  riparian  proprie- 
tors not  being  affected. 

The  claim  of  respondent  is,  that  under  the  provisions  of  the 
code,  any  person  may  divert  all  the  waters  of  a  stream  from 
the  lower  lands,  conduct  them  to  a  distant  place  beyond  the 
watershed,  and,  whatever  the  additional  loss  by  seepage  and 
evaporation  caused  by  a  change  of  the  channel,  apply  them 
either  to  his  own  purposes  or  sell  them  to  others,  the  only  con- 
ditions being  that  he  shall  appropriate  them  in  the  manner 
prescribed  by  the  code,  and  that  they  shall  be  used  for  an 
object  beneficial  to  somebody.  (Civ.  Code,  sec.  1411)  .  .  . 

The  proposition  is  simply  that,  by  imperative  necessity,  the 
right  to  take  or  appropriate  water  should  be  held  paramount 
to  every  other  right  with  which  it  may  come  in  conflict. 

But  the  policy  of  the  state  is  not  created  by  the  judicial 
department,  although  the  judicial  department  may  be  called 
upon  at  times  to  declare  it;  it  can  be  ascertained  only  by 
reference  to  the  constitution  and  laws  passed  under  it,  or, 
which  is  the  same  thing,  to  the  principles  underlying  and 
recognized  by  the  constitution  and  laws. 

The  contest  here  is  between  persons  who,  as  in  every  other 
litigation,  may  be  said  indirectly  to  represent  other  persons 


Lux  v.  HAGGIN.  87 

or  classes  of  persons  having  interests  like  those  of  the  respec- 
tive parties,  since  the  decision  in  this  case  may  establish  a 
rule  which  shall  determine  the  rights  of  other  persons  holding 
positions,  relatively  to  each  other,  like  those  of  the  plaintiffs 
and  defendant  herein.  Even  if  the  greater  number  whom  it 
is  assumed  will  be  benefited  by  making  the  interests  of  non- 
riparian  takers  or  appropriators  paramount  shall  also  be 
assumed  to  constitute  "the  public,"  while  riparian  proprie- 
tors, however  numerous,  shall  be  treated  merely  as  individuals 
having  interests  adverse  to  the  public — this  consideration,  if 
it  should  ever  have  weight  with  judicial  tribunals,  should 
have  weight  only  in  very  doubtful  cases.  .  .  . 

If  the  law  is  settled,  we  cannot  override  the  established  rule 
to  secure  some  conjectural  advantage  to  a  greater  number. 
If,  however,  we  were  permitted  to  do  this,  the  inquin^  would 
still  remain  whether  the  recognition  of  a  doctrine  of  appro- 
priation (such  as  is  contended  for  by  respondent)  would  se- 
cure the  greatest  good  to  the  greatest  number.  Observe,  if 
that  be  the  true  rule,  the  appropriator  does  not  necessarily 
act  as  the  agent  of  the  state  employing  the  power  of  eminent 
domain  for  the  benefit  of  the  public,  but  by  his  appropriation 
makes  the  running  water  his  own,  subject  only  to  the  trust 
that  he  shall  employ  it  for  some  useful  purpose.  It  would 
hardly  be  contended  that  while  he  continues  to  use  it  for  a 
useful  purpose  a  statute  would  be  valid  which  should  take 
it  from  him,  without  indemnification,  under  a  pretext  of  regu- 
lating the  "common  use"  of  the  water  more  profitably,  or  of 
providing  for  its  distribution  so  as  to  benefit  a  greater  number 
of  persons.  He  would  have  a  vested  right  to  the  use  of  the 
water,  although  the  riparian  proprietors  would  have  none. 
If,  indeed,  one  who  has  appropriated  the  water  of  a  stream, 
since  the  adoption  of  the  present  constitution  has  appropriated 
it  "for  sale,  rental,  or  distribution"  to  others,  the  rates  he 
may  charge  consumers  must  be  fixed  by  local  authority. 
(Const.,  art.  14,  sec.  1.)  But  if  he  shall  consume  the  water 
himself,  one  may  thus,  for  his  own  benefit,  arbitrarily  deprive 
many  of  an  advantage,  which,  whether  technically  private 
property  or  not,  is  of  great  value,  and  thus  secure  to  himself 
that  which,  by  every  definition,  is  a  species  of  private  property 
in  him.  Riparian  lands  are  irrigated  naturally  by  the  waters 


88  WATER  RIGHTS  AND  IRRIGATION  LAW. 

percolating  through  the  soil  and  dissolving  its  fertilizing  prop- 
erties. This  is  sufficiently  apparent  from  the  consequences 
which  ordinarily  follow  from  a  continual  cessation  of  the  flow 
of  a  stream.  If,  in  accordance  with  the  law,  such  lands  may 
be  deprived  of  the  natural  irrigation  without  compensation  to 
the  owners,  we  must  so  hold;  but  we  fail  to  discover  the 
principles  of  "public  policy"  which  are  of  themselves  of  para- 
mount authority  and  demand  that  the  law  shall  be  so  declared. 
In  our  opinion,  it  does  not  require  a  prophetic  vision  to  antici- 
pate that  the  adoption  of  the  rule,  so  called,  of  "appropria- 
tion" would  result  in  time  in  a  monopoly  of  all  the  waters  of 
the  state  by  comparatively  few  individuals,  or  combinations 
of  individuals  controlling  aggregated  capital,  who  could  either 
apply  the  water  to  purpose*  useful  to  themselves,  -or  sell  it  to 
those  from  whom  they  had  taken  it  away,  as  well  as  to  others. 
Whether  the  fact  that  the  power  of  fixing  rates  would  be  in 
the  supervisors,  etc.,  would  be  a  sufficient  guaranty  against 
overcharges  would  remain  to  be  tested  by  experience.  What- 
ever the  rule  laid  down,  a  monopoly  or  concentration  of  the 
waters  in  a  few  hands  may  occur  in  the  future.  But  surely 
it  is  not  requiring  too  much  to  demand  that  the  owners  of 
lands  shall  be  compensated  for  the  natural  advantages  of 
which  they  are  to  be  deprived. 

It  is  admitted  that  a  single  riparian  proprietor  would  stand 
on  the  same  footing  as  one  not  such.  But  the  concession 
would  still  leave  the  rule  in  force,  "First  come  first  served." 

It  has  been  assumed  that  there  is  no  medium  between  the 
rule  contended  for  and  what  has  been  said  to  be  the  rule  of 
the  common  law,  which  requires  that  the  stream  shall  flow 
" undiminished  in  quantity"  past  the  lands  of  all  the  riparian 
proprietors.  And  it  has  sometimes  been  gravely  argued  that, 
unless  the  doctrine  of  appropriation  shall  prevail,  the  owner 
of  lands  near  the  mouth  of  a  stream  may  not  only  fail  to  use 
the  waters  himself,  but  will  have  power  to  refuse  to  permit 
any  other  person  to  employ  them. 

We  have  already  said  that  the  right  to  the  water  of  the 
riparian  proprietor  may  be  taken  for  a  public  use,  on  due  com- 
pensation to  such  proprietor.  And  it  will  be  noted  (since  the 
defendant  is  not  a  riparian  proprietor  unless  made  such  by  the 
mere  fact  of  its  appropriation)  that  the  exigencies  of  the  pres- 


Lux  v.  HAGGIN.  89 

ent  case  do  not  imperatively  demand  that  we  shall  here  deter- 
mine the  respective  rights  of  riparian  owners  as  between 
themselves.  But  even  if  the  defendant  is  to  be  treated  as  a 
riparian  proprietor  with  reference  to  the  specific  tract  in 
which  is  the  head  of  its  canal,  we  entertain  no  doubt,  upon 
principles  of  the  common  law,  as  applied  to  the  conditions  here 
existing,  that  each  riparian  proprietor  is  entitled  to  a  reason- 
able use  of  the  water  for  irrigation.  This  statement  has  its 
bearing  on  the  alleged  public  policy,  which,  it  is  claimed, 
should  control  when  the  alternative  is  presented  between 
"appropriation"  and  the  nonuse  for  irrigation,  or  like  pur- 
poses, by  any  person.  What  is  a  reasonable  use  by  a  ripa- 
rian occupant — reference  being  had  to  the  use  required  by  the 
others — must  depend  upon  the  circumstances  of  each  particu- 
lar case.  This  cause  was  not  tried  on  the  theory  that  defend- 
ant was  a  riparian  owner.  There  is  no  pretense  that  the  water 
diverted  was  necessary  for,  or  was  used  for,  the  reasonable 
irrigation  of  the  specific  tract  at  the  head  of  defendant's  canal. 
Counsel  do  not  seem  to  agree  as  to  the  nature  and  pervading 
force  of  the  "public  policy"  relied  on.  While  on  the  one 
hand  it  has  been  suggested  that  policy  demands  the  recog- 
nition of  the  doctrine  of  "appropriation,"  so  called  (a  doc- 
trine which  would  give  to  the  prior  appropriator  the  right  to 
divert,  without  compensation,  all  the  waters  flowing  to  in- 
ferior riparian  owners),  throughout  the  state,  counsel  appear- 
ing as  amici  curiae  urge  that  different  public  policies  obtain 
in  different  portions  of  the  state.  In  view  of  this  assumed 
fact,  it  is  said  it  should  be  held  that  the  streams  in  the  more 
arid  portions  of  California  may  be  entirely  diverted  by  the 
prior  appropriator,  as  against  those  below,  and  that  the  com- 
mon-law rights  of  riparian  proprietors  should  prevail  in  the 
regions  in  which  the  climate  more  nearly  resembles  that  of 
other  states  where  the  common-law  rule  is  enforced.  The 
aridity  of  the  soil  and  air  being  made  the  test,  the  greater  the 
aridity  the  greater  the  injury  done  to  the  riparian  proprie- 
tors below  by  the  entire  diversion  of  the  stream,  and  the 
greater  the  need  of  the  riparian  proprietor  the  stronger  the 
reason  for  depriving  him  of  the  water.  It  would  hardly  be  a 
satisfactory'  reason  for  depriving  riparian  lands  of  all  benefit 
from  the  flow,  that  they  would  thereby  become  utterly  unfit 


90  WATER  RIGHTS  AND  IRRIGATION  LAW. 

for  cultivation  or  pasturage,  while  much  of  the  water  diverted 
must  necessarily  be  dissipated.  No  precise  line  of  separation 
between  the  regions  so  characterized  is  pointed  out,  and  the 
attempted  classification  is  itself  somewhat  uncertain  and  in- 
definite. It  would  seem  there  could  be  no  doubt  that  the  law, 
derived  from  the  same  sources,  is  the  same  everywhere  in  Cali- 
fornia. Were  the  theory  of  counsel  accepted,  would  the 
courts  take  judicial  notice  of  the  physical  conditions,  in  an 
undefined  district,  which  would  compel  the  adoption  of  one 
rule  rather  than  the  other?  Or  would  the  matter  be  sub- 
mitted to  the  trial  court  or  a  jury,  upon  evidence,  to  be  deter- 
mined as  a  question  of  fact?  If  the  theory  were  accepted, 
parties  to  a  litigation  would  be  subjected  to  one  or  another 
law,  as  it  might  be  deemed  by  court  or  jury,  in  the  particular 
case,  that  it  was  for  the  interest  of  the  neighborhood  (or  large 
"region,"  as  the  case  might  be)  that  the  rights  of  the  parties 
should  be  settled  by  the  one  law  or  the  other.  Perhaps,  too, 
the  law  with  respect  to  appropriators  and  bank  owners  on  the 
same  stream  would  vary  with  the  changing  seasons.  And  if 
the  issue  as  to  the  applicability  of  one  law  or  another  were 
submitted  as  a  question  of  fact,  two  different  laws  might  ob- 
tain and  determine  the  rights  of  parties  in  different  suits,  as 
the  evidence  adduced  with  respect  to  physical  conditions  of 
the  "region"  should  bring  home  to  the  minds  of  the  triers 
one  conviction  or  another.  Certainly,  a  judgment  in  a  par- 
ticular case  (if  the  question  would  be  one  of  fact)  would  not 
be  binding  upon  all  the  residents  of  the  region,  nor  determine 
what  law  prevailed  therein.  We  can  conceive  of  no  "public 
policy"  which  should  compel  us  to  abandon  the  rights  of  the 
citizen  to  the  whim  or  caprice,  or  to  the  deliberate  and  honest 
judgment,  of  the  arbiter  in  each  separate  case.  Whatever  is 
the  general  law  bearing  on  the  subject,  it  is  the  same  every- 
where within  the  limits  of  the  state.  It  is  for  the  court  to 
apply,  or  to  direct  a  jury  to  apply,  the  appropriate  rule  to  the 
facts  proved  by  the  evidence  bearing  upon  the  issues  made  by 
the  pleadings,  but  neither  court  nor  jury  can  say  that  it  is 
expedient  to  declare  that  a  law  shall  be  operative  in  one  por- 
tion of  the  state  which  differs  from  the  law  in  other  portions, 
or  to  decide  that  there  is  no  general  law  bearing  on  the  sub- 
ject. 


Lux  v.  HAGGIN.  91 

IV.  By  the  law  of  Mexico  the  running  waters  of  Califor- 
nia were  not  dedicated  to  the  common  use  of  all  the  inhabi- 
tants in  such  sense  that  they  could  not  be  deprived  of  the 
common  use. 

We  have  been  warned  lest  in  approaching  the  subject  we 
shall  assume  that,  in  the  very  nature  of  things,  running  waters 
are  inseparably  connected  with  the  riparian  lands.  It  may 
be  conceded  that  if  riparian  owners  have  any  right  in  the 
waters  (or  in  the  lands  themselves),  it  is  such  as  is  created 
or  recognized  by  the  law  of  the  land.  It  is  at  least  equally 
true,  however,  that  every  inhabitant  of  a  state  or  district  does 
not  possess  a  potential  right,  inherent  in  his  habitancy,  to 
divert  so  much  of  the  waters  of  a  stream  as  he  may  have 
occasion  to  employ.  The  whole  matter  depends  upon  the  law 
of  the  country,  written  or  unwritten. 

Counsel  for  respondent  announce  the  proposition:  "The 
fundamental  principle  upon  which  all  the  laws  of  the  former 
governments  of  this  territory  upon  this  subject  (waters  and 
their  uses)  were  based,  will  be  found  to  be  that  the  flowing 
waters  of  the  streams  and  rivers  of  the  country  were  dedicated 
to  the  common  use  of  the  inhabitants,  subject  to  that  legisla- 
tive control  which  is  the  equivalent  of  the  exercise  of  that 
legislative  power  which  we  know  as  the  police  power  of  the 
state." 

We  understand  this  to  mean  that  the  "inhabitants"  of  the 
territory,  or  at  least  the  occupants  of  lands  in  each  valley  or 
watershed  capable  of  irrigation  from  a  stream  flowing  in  it, 
had  under  the  Mexican  law  a  vested  interest  in  the  common 
use  for  irrigation  and  like  purposes  to  which  the  waters  were 
' '  dedicated, ' '  which  could  not  be  taken  away  by  the  legislative 
power;  that  the  dedication  continues  to  the  present  hour; 
that  the  state  of  California  has  no  power  to  restrict  the  use  to 
riparian  proprietors;  that  the  statute  of  1850  adopting  the 
common  law  "as  the  rule  of  decision"  is  not  to  be  construed 
as  an  attempt  so  to  restrict  the  use,  and  if  it  must  be  thus  con- 
strued, it  is  invalid  to  that  extent,  since  the  power  of  the  state 
is  limited  to  the  mere  regulation  of  the  common  use.  .  .  . 

It  may  be  conceded  that,  when  under  the  former  government 
property  was  dedicated  to  the  public  use,  either  by  a  private 
person  or  the  nation,  the  people  comprising  the  public  and 


92  WATER  RIGHTS  AND  IRRIGATION  LAW. 

their  successors  acquired  a  vested  interest — of  which  they  can- 
not be  arbitrarily  deprived — to  the  extent  of  the  common  use 
to  which  the  property  was  dedicated.  But  it  would  seem  to 
be  difficult  to  derive  the  right  to  the  exclusive  use  of  the  whole 
or  portions  of  the  waters  of  a  stream  from  their  dedication  to 
the  common  use  of  all.  We  shall  see  that  the  laws  of  Mexico 
authorized  the  diversion  of  waters  for  the  exclusive  benefit  of 
corporations  and  individuals  under  some  circumstances. 
The  provisions  of  our  Civil  Code  authorize  such  diversions  for 
exclusive  use.  It  cannot  be  successfully  argued  that  laws 
authorizing  such  exclusive  appropriations  are  less  an  infringe- 
ment of  the  ' '  common  use ' '  to  which  rivers  were  devoted  than 
a  law  limiting  the  use  of  the  waters  to  riparian  proprietors. 

And  this  leads  to  an  inquiry  as  to  the  nature  of  the  common 
use  of  running  waters  under  the  Mexican  law. 

In  the  Institute  of  Justinian,  it  is  declared,  concerning 
things:  "They  are  the  property  of  some  one  or  no  one. " 
("Vel  in  nostro  patrimonio  vel  extra  nostrum  patrimomum.") 
' '  Some  are,  by  natural  right,  common  to  all ;  some  are  public ; 
some  are  of  corporate  bodies  (cities — municipia)  ;  and  some 
belong  to  no  one.  Many  are  the  property  of  individuals, 
acquired  in  divers  ways,"  etc.  (Lib.  2,  tit.  1.)  "The  things 
which  by  natural  law  are  common  to  all  are  these:  air,  run- 
ning water  (aqua  profluens),  the  sea,  and  as  a  consequence, 
the  shores  of  the  sea."  (Id.,  sec.  1.)  " Flumina  autem  omnia 
et  portus  publica  sunt."  (Id.,  sec.  2.)  The  Roman  law  dis- 
tinguished between  res  communes  and  res  publicce.  The  sea 
was  included  amongst  the  former,  the  rivers  amongst  the 
latter.  (Halleck's  International  Law,  p.  147,  notes.)  All 
perennial  rivers  were  public.  (Dig.  43,  12,  3.)  Such  rivers 
were  of  the  class  of  things  "publico  usui  destinatc,"  like  ports 
and  roads.  (Moyle's  Ed.  Insts.,  p.  184,  note.)  .  .  . 

By  the  Mexican  law  the  property  in  rivers  pertained  to  the 
nation,  the  use  of  the  inhabitants.  The  nature  of  this  use  will 
be  considered  hereafter.  .  .  . 

The  common  use  of  the  waters,  it  would  seem,  existed  only 
while  they  continued  to  flow  in  and  constituted  a  portion  of  the 
river.  But  under  the  Mexican  law  an  exclusive  use  of  parts 
or  the  whole  of  the  waters  of  a  river  might  be  legally  acquired 
by  individuals.  .  .  . 


Lux  v.  HAGGIN.  93 

By  the  Mexican  Civil  Code  of  1870,  it  is  provided:  "The 
property  in  waters  which  pertains  to  the  state  does  not  preju- 
dice the  rights  which  corporations  or  private  individuals  may 
have  acquired  over  them  by  legitimate  title,  according  to 
what  is  established  in  the  special  laws  respecting  public  prop- 
erty. The  exercise  of  property  in  waters  is  subject  to  what  is 
provided  in  the  following  articles."  (Art.  1066.)  In  Guer- 
ra's  El  Codigo  Civil,  in  Forma  Didactica,  the  word  "pri- 
vate" is  inserted  after  the  word  "property,"  so  as  to  make 
the  last  sentence  of  the  article  read:  "El  ejercicio  de  la  pro- 
piedad  privada  de  las  aguas,  esta  sujeto, "  etc.  If,  as  is  sug- 
gested by  counsel,  the  presumption  is,  that  the  provisions  of 
the  code  are  declaratory  of  the  pre-existing  law,  the  right 
which  could  be  acquired  under  the  laws,  to  the  separate  use 
of  the  portions  of  a  stream,  constituted  an  exclusive  usufruct 
of  the  nature  of  private  property,  which  did  not,  and  could 
not,  coexist  with  a  common  use  of  such  waters  by  all.  As  we 
have  seen,  running  water  is  capable  of  appropriation  as  pri- 
vate property,  independent  of  any  common  use,  where  the 
quantity  of  water  is  so  small  as  to  be  incapable  of  being  fully 
enjoyed  without  exclusive  possession.  The  exclusive  appro- 
priation is  put  in  opposition  to  the  common  use.  (Bowyer, 
supra.)  .  .  . 

The  Mexican  government  prohibited  any  diversion  or  ob- 
struction of  the  waters  of  a  river,  by  riparian  proprietors  or 
others,  which  should  interfere  with  navigation.  .  .  . 

Interference  with  the  appropriate  common  use  of  innavigable 
rivers  was  not  thus  absolutely  prohibited  by  the  Mexican  law. 
The  common  use  of  the  waters  of  such  rivers  by  all  who  could 
legally  gain  access  to  them  continued  only  while  the  waters 
legally  flowed  in  their  natural  channel.  And  the  power  of 
determining  whether  the  public  good — the  purposes  for  which 
the  social  state  exists — demands  that  the  use  of  the  whole  or 
portions  of  the  waters  should  pass  as  an  exclusive  right  to  one 
or  a  class  of  individuals  remained  in  the  sovereign.  "Whether 
the  power  is  an  incident  to  the  ultimate  domain  or  right  of  dis- 
posing of  the  property  of  the  state,  or  is  to  be  referred  to  some 
other  source  or  principle,  the  Mexican  government  employed 
the  power  of  permitting  the  diversion  of  waters  from  innavi- 
gable rivers  by  those  not  riparian  proprietors,  upon  such 


94  WATER  RIGHTS  AND  IRRIGATION  LAV/. 

terms  and  conditions,  and  with  such  limitations,  as  were  es- 
tablished by  law,  of  by  usages  and  customs  which  had  the 
force  of  law.  That  government  saw  fit  to  concede  private 
rights  to  the  exclusive  use  of  the  waters  of  such  streams.  It 
had  power  to  do  this  even  if  the  consequence  should  be  the 
entire  deprivation  of  the  common  use. 

It  may  be  said  that  the  Mexican  laws  which  provided  for 
such  concessions  to  individuals  or  corporations  did  not  pro- 
vide for  grants  to  such  persons,  but  were  themselves  a  recog-. 
nition  of  a  right  in  all  to  a  use  of  the  waters.  .  .  . 

Those  who  appropriated  and  diverted  the  waters  of  an  in- 
navigable river,  in  accordance  with  the  laws,  obstructed  pro 
tanto  its  common  use.  Nevertheless,  they  acquired  an  exclu- 
sive right  to  the  use  of  that  which  they  diverted,  because,  if 
they  complied  with  the  established  conditions,  their  rights 
were  acquired  under  and  in  accordance  with  law,  and  the 
waters  they  diverted  were  no  longer  portions  of  the  waters 
of  a  river,  or  subject  to  the  common  use. 

No  one  of  such  had  any  right  in  or  to  the  water  until  he 
had  complied  with  the  conditions  which  authorized  him  to 
appropriate  it.  Every  one  of  such  who  complied  with  the 
conditions,  and  appropriated  water,  acquired  a  vested  right  in 
such  water,  at  least  while  he  continued  to  use  it,  except  in 
the  single  case  where  he  acquired  a  right  merely  conditional, 
under  laws  which  reserved  the  power  in  the  agents  of  the  state 
or  municipality  to  deprive  him  of  it  without  indemnification. 
It  may  be  conceded  that  one  who  had  acquired  the  right  to  the 
exclusive  use  of  a  portion  of  the  waters  of  a  river  under  the 
Mexican  regime  could  not  be  deprived  of  his  right  by  a  law 
of  California.  But  can  it  be  said  that  all  the  inhabitants  of 
the  state,  or  of  a  valley  through  which  a  stream  flows,  have 
such  a  vested  right  in  the  use  of  the  waters  which  some  of 
them  (on  performance  of  the  conditions  prescribed  by  Mexi- 
can law)  might  have  appropriated,  but  never  did  appropriate? 
— this  on  the  theory  that  the  waters  had  been  dedicated  to  the 
common  use  of  all.  It  would  be  a  dedication  never  accepted 
by  those  to  whom  it  was  made,  and  a  dedication  to  a  common 
use  which  could  never  be  enjoyed  in  common.  .  .  . 

The  property  of  the  nation  is  in  the  river  and  its  bed,  while 
it  is  the  bed  of  the  river;  the  common  use  continues  while 


Lux  v.  HAGGIN.  95 

the  water  is  the  water  of  a  river.  But  a  private  right  to  the 
exclusive  use  of  the  waters  could  be  acquired  under  the  Mexi- 
can law  by  prescription,  or  on  compliance  with  the  estab- 
lished conditions;  and  the  general  property-  of  the  nation  in 
running  waters  did  not  prejudice  such  special  private  rights. 

Conceding  the  provisions  of  the  Civil  Codes  of  1870  and 
1884  to  be  declaratory  of  the  law  as  it  existed  when  California 
was  ceded  to  the  United  States,  they  do  not  confer  nor  recog- 
nize any  inherent  vested  right,  enforceable  in  the  courts,  in 
others  than  riparian  proprietors,  to  the  use  of  any  portion  of 
the  waters  of  a  stream,  nor  any  right,  except  as  to  those  who 
actually  appropriate  waters  in  the  manner  and  on  the  condi- 
tions prescribed  by  the  laws.  It  may  be  that  the  Mexican 
system  implies  a  recognition  of  an  imperfect  obligation  or 
moral  duty  on  the  part  of  the  government  to  provide  for  the 
distribution  of  the  waters  in  such  manner  as  to  encourage  the 
settlement  of  the  country,  develop  manufactures,  and  benefit 
agriculture.  In  this  view  it  would  seem  that  the  laws  were 
inspired  with  a  liberal  spirit,  and  were  well  calculated  to  ad- 
vance those  objects. 

By  the  codes  the  owner  of  an  estate  in  which  there  is  a 
natural  spring  may  use  or  dispose  of  its  waters,  subject  only 
to  condemnation  for  public  use  on  compensation  to  the  owner. 

The  laws  of  Mexico  relating  to  pueblos  conferred  on  the 
town  authorities  the  power  of  distributing,  to  the  common 
lands  and  to  its  inhabitants,  the  waters  of  an  innavigable  river 
on  wThich  the  pueblo  was  situated.  It  is  not  necessary  to  say 
that  the  property  of  the  nation  in  the  river,  as  such,  was  trans- 
ferred to  the  pueblo,  but  it  would  seem  that  a  species  of  right 
to  the  use  of  all  its  waters  necessary  to  supply  the  domestic 
wants  of  the  pobladores,  the  irrigable  lands  and  the  mills  and 
manufactories  within  the  general  limits,  was  vested  in  the 
pueblo  authorities,  subject  to  the  trust  of  distributing  them 
for  the  benefit  of  the  settlers.  .  .  . 

Each  pueblo  was  quasi  a  public  corporation.  By  the  scheme 
of  the  Mexican  law,  it  was  treated  as  an  entity,  or  person,  hav- 
ing a  right  as  such,  and  by  reason  of  its  title  to  the  four 
leagues  of  land,  to  the  use  of  the  waters  of  the  river  on  which 
it  was  situated,  while  as  a  political  body  it  was  vested  with 


96  WATER  RIGHTS  AND  IRRIGATION  LAW. 

power,  by  ordinance,  to  provide  for  a  distribution  of  the 
waters  to  those  for  whose  benefit  the  right  and  power  were  con- 
ferred. .  .  . 

Thus  by  virtue  of  the  laws  each  person  having  land  within 
the  pueblos  was  permitted  to  conduct  water  to  it  (obtaining 
the  consent  of  the  owners  of  the  lands  between  his  and  the 
river),  provided,  by  so  doing  he  did  not  violate  the  municipal 
ordinances  giving  destination  or  distributive  use  to  the  waters. 

By  its  terms  this  permission  was  accorded  only  to  the  in- 
habitants of  the  pueblo,  and  could  be  acted  on  only  in  such 
manner  as  should  not  interfere  with  municipal  ordinances.  .  .  . 

From  the  foregoing  it  appears  that  the  riparian  proprietor 
could  not  appropriate  water  in  such  manner  as  should  inter- 
fere with  the  common  use  or  destiny  which  a  pueblo  on  the 
stream  should  have  given  to  the  waters ;  and  semble,  that  the 
pueblos  had  a  preference  or  prior  right  to  consume  the  waters 
even  as  against  an  upper  riparian  proprietor.  The  common 
use  here  spoken  of  is  the  use  for  the  benefit  of  the  community 
or  inhabitants  of  the  pueblo,  whose  interests  as  a  whole  were 
to  be  considered  in  the  distribution  of  the  waters  by  the  officers 
of  the  pueblo.  (Plan  of  Pitic,  sec.  20.)  It  is  not  necessary 
here  to  decide  that  the  pueblos  had  the  preference  above  sug- 
gested. Nor  is  it  necessary  here  to  speak  of  the  relative  rights 
of  two  or  more  municipalities  on  the  same  stream.  In  such 
case  (whatever  the  standard  by  which  were  to  be  determined 
the  relative  rights  of  the  pueblos  respectively  as  to  quantity 
of  water),  it  would  seem  clear  that  the  municipal  regulations 
of  each,  with  respect  to  the  application  and  distribution  of 
water,  would  be  of  force  only  within  its  own  boundaries.  But 
there  could  be  no  municipal  ordinance  of  a  pueblo  regulating 
or  distributing  the  waters  of  a  stream  amongst  its  inhabitants, 
or  other  persons,  until  a  pueblo  was  established.  We  take 
notice  that  no  pueblo  existed  on  the  watercourse  (if 'any  there 
be)  which  is  the  subject  of  the  present  controversy.  No  por- 
tion of  its  waters  were  therefore  dedicated  or  devoted  to  the 
use  of  the  inhabitants  of  a  pueblo  by  virtue  of  the  laws  giving 
to  pueblos  the  power  of  distributing  waters.  .  .  . 

Thus  the  waters  of  innavigable  rivers,  while  they  continued 
such,  were  subject  to  the  common  use  of  all  who  could  legally 


Lux  v.  HAGGIN.  97 

gain  access  to  them  for  purposes  necessary  to  the  support  of 
life,  but  the  Mexican  government  possessed  the  power  of  re- 
taining the  waters  in  their  natural  channel,  or  of  conceding  the 
exclusive  use  of  portions  of  them  to  individuals  or  corpora- 
tions, upon  such  terms  and  conditions,  and  with  such  limita- 
tions, as  it  saw  fit  to  establish  by  law. 

The  respondent  here  is  not  the  successor  in  interest  of  an 
individual  or  corporation  which  acquired  a  property  in  the 
exclusive  use  of  waters  by  compliance  with  the  conditions  pre- 
scribed by  the  laws  of  Mexico,  or  in  accordance  with  municipal 
ordinances  or  regulations,  or  under  any  custom  of  the  country. 
No  city  or  pueblo  existed  on  the  alleged  stream,  and  at  the 
trial  hereof  no  evidence  wras  given  of  any  special  or  general 
custom  with  respect  to  the  particular  stream  or  with  respect 
to  all  rivers  in  California.  No  general  custom  existed.  More- 
over, if  it  had  ever  existed  it  would  have  continued  only  until 
abrogated  by  legislation.  .  .  . 

V.  Upon  the  admission,  of  California  into  the  Union,  this 
state  became  vested  with  all  the  rights,  sovereignty,  and  juris- 
diction in  and  over  navigable  waters,  and  the  soils  under  them, 
which  were  possessed  by  the  original  states  after  the  adoption 
of  the  constitution  of  the  United  States. 

Since  the  admission  of  California  into  the  Union,  the  public 
lands  of  the  United  States  (except  such  as  have  been  reserved 
or  purchased  for  forts,  navy-yards,  public  buildings,  etc.)  are 
held  as  are  the  lands  of  private  persons,  except  that  they  can- 
not be  taxed  by  the  state,  nor  can  the  primary  disposition  of 
them  be  interfered  with.  .*  .  . 

VI.  Since,  if  not  before,  the  admission  of  California  into 
the  Union,  the  United  States  has  been  the  owner  of  all  in- 
navigable streams  on  the  public  lands  of  the  United  States, 
within  our  borders,  and  of  their  banks  and  beds. 

A  grant  of  public  land  of  the  United  States  carried  with  it 
the  common-law  rights  to  an  innavigable  stream  thereon,  un- 
less the  waters  are  expressly  or  impliedly  reserved  by  the  terms 
of  the  patent,  or  of  the  statute  granting  the  land,  or  unless 
they  are  reserved  by  the  congressional  legislation  authorizing 
the  patent  or  other  muniment  of  title.  .  .  . 
T 


98  WATER  EIGHTS  AND  IRRIGATION  LAW. 

•'  VII.  The  state  of  California  became  the  owner  of  the 
swamp  lands  described  in  the  complaint  herein,  on  the  twenty- 
eighth  day  of  September,  1850.  .  .  . 

VIII.  It  has  never  been  held  by  the  supreme  court  of  the 
United  States,  or  by  the  supreme  court  of  this  state,  that  an 
appropriation  of  the  water  on  the  public  lands  of  the  United 
States  (made  after  the  act  of  Congress  of  July  26,  1866,  or 
the  amendatory  act  of  1870)  gave  to  the  appropriator  the  right 
to  the  water  appropriated,  as  against  a  grantee  of  riparian 
lands  under  a  grant  made  or  issued  prior  to  the  act  of  1866  ; 
except  in  a  case  where  the  water  so  subsequently  appropriated 
was  reserved  by  the  terms  of  such  grant. 

Since,  as  before,  September  28,  1850,  the  United  States  has 
been  the  owrner  of  lands  in  California  with  power  to  dispose 
of  the  same  in  such  manner  and  on  such  terms  and  conditions 
(not  interfering  with  vested  rights  derived  from  the  United 
States)  as  it  deemed  proper.  But  neither  the  legislation  of 
Congress  with  respect  to  the  disposition  of  the  public  lands, 
nor  its  apparent  acquiescence  in  the  appropriation  by  indi- 
viduals of  waters  thereon,  subsequent  to  the  act  of  September, 
1850,  granting  the  swamp  lands  to  the  state,  can  affect  the 
title  of  the  state  to  lands  and  waters  granted  by  that  act. 

Neither  the  supreme  court  of  .the  United  States  nor  the  su- 
preme court  of  California  has  ever  held  in  opposition  to  this 
view.  .  .  . 

IX.  The  rights  of  the  state  under  the  grant  of  September 
28,  1850,  do  not  depend  upon,  nor  are  they  limited  by,  the  de- 
cisions of  the  state  courts  with  respect  to  controversies  upon 
the  public  lands  of  the  United  States,     Those  decisions  do  not 
enter  into  nor  operate  upon  the  subsequent  legislation  of  Con- 
gress in  such  manner  as  to  require  that  the  legislation  (or  its 
affirmance  of  rights  recognized  by  the  state  courts  as  existing 
between  occupants  upon  the  public  lands  of  the  United  States) 
must  be  construed  as  an  attempt  to  deprive  the  state  of  its 
vested  rights. 

If  the  decisions  mentioned  can  be  referred  to  for  any  pur- 
pose, semble:  That  the  occupant  of  a  tract  of  riparian  land 
(arable  or  grazing)  on  the  public  domain  is  by  such  decisions 
presumed  to  have  received  a  grant  of  the  flowing  water,  to 


Lux  v.  HAGGIN.  99 

the  extent  of  the  common-law  right  to  the  use  of  such  water 
as  it  flows  through  the  land. 

And  if  the  doctrine  as  to  adverse  claims  upon  the  public 
lands  as  declared  by  these  decisions  be  extended  to  lands 
granted  to  the  state,  it  cannot  affect  the  title  or  estate  of 
grantees  of  the  state  (the  water  not  being  reserved  in  the 
grants  or  in  the  legislation  authorizing  the  grant) .  The  doc- 
trine is  applicable  alone  to  actions  in  which  both  parties  claim 
only  by  possession. 

X.  The  common  law  as  to  the  riparian  right  was  not  abro- 
gated by  certain  statutes  of  the  state,  applicable  to  a  district 
of  country  within  which  is  included  the  county  of  Kern;  nor 
was  the  state  estopped  by  such  statutes  from  asserting  its  right 
to  the  flow  of  a  natural  stream  from  that  district  to  and  over 
the  lands  granted  to  the  state  by  the  act  of  Congress  of  1850. 

From  what  has  been  said,  it  appears  that  the  respondent  has 
not  derived  from  the  United  States  a  right  to  divert  the  water 
of  a  flowing  stream  from  the  lands  granted  to  the  state  in 
1850,  or  from  the  premises  of  a  grantee  of  the  state  to  a  por- 
tion of  those  lands.  It  is  in  order  to  inquire  whether  the  state 
itself  has  authorized  such  diversion. 

It  is  claimed  that,  so  far  as  the  territory  comprised  within 
Kern  county  is  concerned,  the  common-law  doctrine  of  ri- 
parian rights — if  it  ever  existed — does  not  exist,  but  has  been 
repealed,  and  the  law  of  "appropriation"  adopted  by  certain 
statutes. 

The  county  of  Kern  was  created  by  the  act  of  April  2,  1866, 
which  took  effect  June  2,  1866.  It  was  formed  of  portions 
of  Tulare  and  Los  Angeles  counties.  On  the  fifteenth  day  of 
May,  1854,  an  act  was  passed  (Stats.  1854,  p.  76)  providing 
for  the  election  in  each  township  of  certain  counties  (includ- 
ing Tulare  and  Los  Angeles)  of  a  board  of  three  "water  com- 
missioners" and  an  overseer.  The  commissioners  were  to  ex- 
amine streams  and  apportion  their  waters  ' '  among  the  inhabi- 
tants of  their  district";  on  petition  to  lay  out  and  construct 
ditches,  etc.  The  overseers  were  to  execute  the  orders  of  the 
commissioners,  superintend  works  directed  by  them,  and  see 
that  the  water  was  kept  clear  and  the  ditches  in  repair.  Sec- 
tion  14  of  the  act  provided:  "No  person  or  persons  shall  di- 


100  WATER  RIGHTS  AND  IRRIGATION  LAW. 

vert  the  waters  of  any  river,  creek,  or  stream  from  its  natural 
channel  to  the  detriment  of  any  other  person  or  persons  lo- 
cated below  them  on  any  such  stream." 

February  19,  1857,  April  28,  1860,  and  again  February 
21,  1861,  the  act  of  May  15,  1854,  was  amended,  but  not  so 
as  to  affect  any  question  involved  in  the  present  case.  (Stats. 
1857,  p.  29;  Stats.  1860,  p.  385;  Stats.  1861,  p.  31.) 

The  second,  third,  and  fourteenth  sections  of  the  act  of  May, 
1854,  were  amended  by  the  act  of  April  10,  1862.  (Stats. 
18G2,  p.  235.)  The  second  section,  as  amended,  provided  that 
the  supervisors,  instead  of  the  county  judge,  should  order  the 
election  of  the  commissioners,  etc.  The  third  section  gave  the 
commissioners  power  to  determine  what  watercourses  ought 
"to  be  appropriated  to  public  use,"  to  apportion  the  water,  etc. 
/'And  the  fourteenth  section,  as  amended — the  third  section  of 
the  amendatory  act — declared:  "No  person  or  persons  shall 
divert  the  waters  of  any  river,  creek,  or  stream  from  its 
natural  channel,  to  the  detriment  of  any  other  person  or  per- 
sons located  below  them  on  any  such  stream,  unless  previous 
compensation  be  ascertained  and  paid  therefor,  under  the  pro- 
visions of  this  act,  or  under  the  provisions  of  other  laws  t>f  this 
state  authorizing  the  taking  of  private  property  for  public 
uses. ' ' 

It  would  be  difficult  to  invent  a  combination  of  words  which 
would  more  explicitly  recognize  a  property  to  the  flow  of  the 
stream  in  the  riparian  owners  below  the  point  of  diversion. 

The  statute  of  1854  and  the  amendments  authorized  (or 
attempted  to  authorize)  the  commissioners  to  decide  whether 
a  watercourse  should  be  condemned  or  ' '  appropriated ' '  to  the 
public  use,  and  to  divert  and  apportion  the  water  of  the 
stream  so  appropriated.  Evidently,  by  the  persons  who  are 
not  to  be  detrimented  without  compensation  is  meant  the  in- 
ferior riparian  proprietors,  whose  property  in  the  waters  may 
be  taken  for  the  "public  use"  on  payment  of  due  compensa- 
tion, according  to  the  laws  of  the  state  "authorizing  the  tak- 
ing of  private  property  for  public  uses. ' '  If  not  they,  whom 
else  ?  The  scheme,  if  valid,  necessarily  excludes  any  diversion 
at  all,  by  a  private  person,  of  waters  of  a  stream  "appro- 
printed  to  the  public  use"  by  the  commissioners,  and  any  di- 
version or  appropriation  through  ditches  other  than  those 


Lux  v.  HAGGIN.  101 

made  under  the  direction  of  the  commissioners.  The  persons, 
then,  who  are  prohibited  from  diverting  water  to  the  injury 
of  those  below,  except  on  due  compensation,  are  the  commis- 
sioners and  those  acting  under  command  of  the  commissioners. 

Nor  can  it  be  said  that  everybody  else  might  be  made  to 
suffer  detriment,  without  compensation,  by  diversion  of  water 
by  the  commissioners,  except  only  those  persons  who  had  "ap- 
propriated" waters  of  the  stream  prior  to  the  act  of  1854,  and 
who  continued  to  use  the  same.  If  the  intention  had  been  to 
protect,  or  rather  to  recognize  the  rights  of  that  class  only  (if 
any  such  class  existed),  we  cannot  but  believe  that  the  purpose 
would  have  been  expressed  in  appropriate  language.  The  lan- 
guage of  the  provision  is  sweeping,  and  while  perhaps  broad 
enough  to  include  nonriparian  proprietors  who  had  diverted 
water  prior  to  the  act,  is  peculiarly  applicable,  and  certainly  in- 
cludes those  who  had  acquired  the  title  to  riparian  lands  prior 
to  a  diversion,  and  also  includes  prior  riparian  occupants — 
"No  person  or  persons  shall  divert,"  etc.  The  term  "loca- 
tion'' has  been  generally  applied  to  occupations  of  portions  of 
the  public  domain,  while  diverters  of  waters  have  been  called, 
and  throughout  the  elaborate  briefs  of  counsel  herein  are 
called,  "  appropriators. "  The  amendatory  statute  not  only 
recognizes  the  riparian  rights  of  those  in  possession  of  lands 
through  which  the  stream  "appropriated  to  public  use"  may 
pass,  but  is  a  legislative  construction  of  the  words  (if  any 
such  construction  were  needed)  found  in  the  fourteenth  sec- 
tion of  the  original  act  of  1854, — "to  the  detriment  of  any 
person  or  persons  located  below  them  on  such  stream."  .  .  . 

XI.  Section  1422  of  the  Civil  Code  (' '  The  rights  of  riparian 
proprietors  are  not  affected  by  the  provisions  of  this  title") 
is  protective,  not  only  of  riparian  rights  existing  when  the 
code  was  adopted,  but  also  of  the  riparian  rights  of  those  wno 
acquired  a  title  to  land  from  the  state  after  the  adoption  of 
the  code  and  before  an  appropriation  of  water  in  accordance 
with  the  code  provisions. 

Neither  a  grantee  of  the  United  States  nor  the  grantee  of 
a  private  person  who  was  a  riparian  owner  when  the  code 
was  adopted  need  rely  for  protection  on  section  1422.  Such 
persons  are  protected  by  constitutional  principles. 


102  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  state  might  have  reserved  from  her  grants  of  land  the 
waters  flowing  through  them,  for  the  benefit  of  those  who 
should  subsequently  appropriate  the  waters.  But  the  state 
has  not  made  such  reservation. 

The  water  rights  of  the  state,  as  riparian  owner,  are  not 
reserved  to  the  state  by  section  1422,  because  (wherever  the 
state  has  not  already  parted  with  its  right  to  those  who  have 
acquired  from  her  a  legal  or  equitable  title  to  riparian  lands) 
the  provisions  of  the  code  confer  the  state's  right  to  the  flow 
on  those  appropriating  water  in  the  manner  prescribed  by  the 
code. 

It  is  contended  by  respondent  that  the  Civil  Code  gives  to 
it  a  right  to  the  water  superior  to  that  of  the  riparian  pro- 
prietor below ;  that,  as  against  an  appropriator  under  the  code, 
one  who  has  acquired  a  title  to  lands  from  the  state  (subse- 
quently to  the  code,  although  prior  to  the  water  appropria- 
tion) has  no  right  in  or  to  any  of  the  water. 

Title  8  of  part  4,  division  2,  of  the  Civil  Code,  reads : 

''Sec.  1410.  The  right  to  the  use  of  running  water  flowing 
in  a  river  or  stream,  or  down  a  canyon  or  ravine,  may  be  ac- 
quired by  appropriation. 

"Sec.  1411.  The  appropriation  must  be  for  some  useful  or 
beneficial  purpose,  and  when  the  appropriator  or  his  successor 
in  interest  ceases  to  use  it  for  such  a  purpose  the  right  ceases. 

' '  Sec.  1412.  The  person  entitled  to  the  use  may  change  the 
place  of  diversion  if  others  are  not  injured  by  such  change, 
and  may  extend  the  ditch,  flume,  pipe,  or  aqueduct  by  which 
the  diversion  is  made  to  places  beyond  that  where  the  first  use 
was  made. 

' '  Sec.  1413.  The  water  appropriated  may  be  turned  into  the 
channel  of  another  stream  and  mingled  with  its  water,  and 
then  reclaimed ;  but  in  reclaiming  it  the  water  already  appro- 
priated by  another  must  not  be  diminished. 

"Sec.  1414.  As  between  appropriators,  the  one  first  in  time 
is  the  first  in  right. 

"Sec.  1415.  A  person  desiring  to  appropriate  water  must 
post  a  notice  in  writing  in  a  conspicuous  place  at  the  point 
of  intended  diversion,  stating  therein, — 


Lux  v.  HAGGIN.  103 

f 

"1.  That  he  claims  the  water  there  flowing  to  the  extent 
of  (giving  the  number)  inches,  measured  under  a  four-inch 
pressure. 

"2.  The  purposes  for  which  he  claims  it,  and  the  place  of 
intended  use. 

"3.  The  means  by  which  he  intends  to  divert  it,  and  the 
size  of  the  flume,  ditch,  pipe,  or  aqueduct  in  which  he  intends 
to  divert  it. 

"A  copy  of  the  notice  must,  within  ten  days  after  it  is 
posted,  be  recorded  in  the  office  of  the  recorder  of  the  county 
in  which  it  is  posted. 

"Sec.  1416.  Within  sixty  days  after  the  notice  is  posted, 
the  claimant  must  commence  the  excavation  or  construction  of 
the  works  in  which  he  intends  to  divert  the  water,  and  must 
prosecute  the  work  diligently  and  uninterruptedly  to  comple- 
tion, unless  temporarily  interrupted  by  snow  or  rain. 

"Sec.  1417.  By  'completion'  is  meant  conducting  the 
waters  to  the  place  of  intended  use. 

"Sec.  1418.  By  a  compliance  with  the  above  rules  the 
claimant's  right  to  the  use  of  the  water  relates  back  to  the 
time  the  notice  was  posted. 

"Sec.  1419.  A  failure  to  comply  with  such  rules  deprives 
the  claimant  of  the  rights  to  the  uses  of  the  water  as  against 
a  subsequent  claimant  who  complies  therewith. 

' '  Sec.  1420.  Persons  who  have  heretofore  claimed  the  right 
to  water,  and  who  have  not  constructed  works  in  which  to  di- 
vert it,  and  who  have  not  diverted  nor  applied  it  to  some  useful 
purpose,  must,  after  this  title  takes  effect  and  within  twenty 
days  thereafter,  proceed  as  in  this  title  provided,  or  their  right 
ceases. 

"Sec.  1421.  The  recorder  of  each  county  must  keep  a  book, 
in  which  he  must  record  the  notices  provided  for  in  this  title. 

"Sec.  1422.  The  rights  of  riparian  proprietors  are  not  af- 
fected by  the  provisions  of  this  title." 

The  fourth  section  of  the  Civil  Code  declares  that  the  rule 
that  statutes  in  derogation  of  the  common  law  shall  be  strictly 
construed  has  no  application  to  the  code.  And  it  is  added, 
"The  code  establishes  the  law  of  this  state  respecting  the  sub- 
jects to  which  it  relates,  and  its  provisions  are  to  be  liberally 


104  WATER  RIGHTS  AND  IRRIGATION  LAW. 

-*- 

construed,  with  a  view  to  effect  its  objects  and  to  promote  jus- 
tice." 

Counsel  for  respondent  contend  that  section  1410  of  the 
Civil  Code  promulgates  a  general  law,  declaring  the  doctrine 
of  appropriation  to  be  the  law  of  the  land,  and  argue  that,  if  ¥ 
it  be  admitted  the  legislature  could  not  divest  the  owner  of 
the  banks  of  a  watercourse  of  his  riparian  rights,  the  doctrine 
of  appropriation  was  adopted  as  the  general  law,  and  appli- 
cable to  all  public  lands  of  the  state  and  of  the  United  States, 
from  the  point  of  time  when  section  1410  was  enacted.  And 
it  is  said  the  whole  purpose  of  section  1422 — "The  rights  of 
riparian  proprietors  are  not  affected  by  the  provisions  of  this 
title" — is  subserved  by  saving  rights  then  vested. 

It  is  argued  that  the  words  "rights  of  riparian  proprietors" 
are  used  either  in  a  generic  sense,  as  indicating  that  principle 
of  law  known  generally  as  the  doctrine  of  riparian  rights,  or 
else  they  are  used  in  the  more  limited  sense  of  private  rights 
of  individuals  who  then  (when  the  code  was  enacted)  owned 
lands  on  the  banks  of  streams  whose  source  was  on  or  which 
flowed  over  public  lands.  That  it  is  too  self-evident  for 
serious  question  that  the  words  cannot  have  been  used  in  the 
more  enlarged  sense;  for  give  them  that  interpretation,  and 
you  have,  in  the  same  statutory  enactment,  a  declaration  of 
two  diametrically  antagonistic  principles, — the  doctrine  of  ap- 
propriation and  the  doctrine  of  riparian  rights, — doctrines 
which  cannot  coexist.  But,  it  is  said,  giving  the  words  the 
other  and  more  restricted  interpretation,  each  and  all  parts 
of  the  statute  harmonize  one  with  the  other,  and  the  declara- 
tion of  section  4  is  respected.  The  law  of  the  state  being 
appropriation,  its  grant  of  the  land,  made  after  the  code  enact- 
ment, carries  with  it  no  right  to  the  water.  For  since  such 
right  can  only  be  derived  from  some  existing  law,  and  the  code 
has  abrogated  or  repealed  the  law  of  riparian  rights  (except 
to  the  extent  of  preserving  those  then  existing),  there  is  no 
law  under  which  the  right  to  the  water  as  part  and  portion  of 
the  title  granted  can  arise. 

As  stated  above,  it  is  claimed  by  respondent  that  by  the  pro- 
visions of  the  Civil  Code  the  doctrine  of  appropriation  was 
adopted  as  the  general  law  of  the  state,  applicable  to  all  public 


Lux  v.  HAQGIN.  105 

lands  of  the  state  and  the  United  States  from  the  time  section 
1410  was  enacted.  But  section  1410  is  not  limited  in  its  ap- 
plication to  the  public  lands.  Subject  to  the  saving  or  reser- 
vation clause  of  section  1422, — whatever  that  section  may 
mean, — section  1410  declares  the  law  applicable  throughout  the 
state. 

It  seems  to  be  admitted  that  (conceding  the  rights  of  ripa- 
rian proprietors  to  be  measured  by  the  common  law)  riparian 
rights  already  vested  were  not  taken  away  by  section  1410,  and 
could  not  be  taken  away  except  for  the  public  use  and  on  due 
compensation.  It  must  follow,  independent  of  section  1422, 
that  a  purchaser  from  one  who  was  a  riparian  owner  when 
the  code  provisions  took  effect,  by  purchase  made  after  the 
code  enactments,  would  acquire  all  the  estate  and  property  of 
his  vendor.  Otherwise,  private  property  would  be  taken  with- 
out due  process  of  law,  since  arbitrarily  to  deprive  the  owner 
of  property  of  all  capacity  to  sell  it  is  to  deprive  him  pro  tanto 
of  its  benefits.  "The  right  of  acquiring,  possessing,  and  pro- 
tecting property  is  inalienable."  "No  man  shall  be  deprived 
of  his  property  without  due  process  of  law."  (Const.  1849, 
art.  1,  sees.  2-8;  Const.  1879,  art.  1,  sec.  13.)  The  provisions 
of  the  constitution  are  intended  effectually  and  completely  to 
protect  substantial  rights,  and  cannot  be  frittered  away  by 
indirect  legislation. 

And  as  we  have  seen,  one  who  since  the  acts  of  Congress  of 
1866  and  1870  receives  a  grant  of  a  portion  of  the  public  lands 
of  the  United  States,  without  special  or  implied  reservation, 
takes  subject  only  to  appropriations  of  water  made  or  initiated 
prior  to  his  grant.  Let  us  suppose,  after  the  adoption  of  the 
code,  but  before  any  appropriation  of  the  water  flowing  to  the 
tract  granted,  a  grant  or  patent  for  land  to  be  issued  by  the 
United  States.  Could  section  1410  be  held  to  devest  the  gran- 
tee of  his  right  in  the  flow  of  the  stream?  True,  he  has  ac- 
cepted his  grant  in  the  presence  of  the  state  statute.  But  the 
United  States  has  undertaken  to  clothe  him  writh  the  title  to 
the  land  with  the  appropriate  use  of  the  water  as  part  of 
the  land.  Would  not  a  state  law  which,  in  advance  of  the 
grant,  should  attempt  to  take  from  the  grantee  the  flow  of  the 
stream,  acquired  from  or  sought  to  be  conveyed  by  the  United 


106  WATER  RIGHTS  AND  IRRIGATION  LAW. 

States,  and  confer  the  waters  on  one  who  has  acquired  no  right 
to  them  from  the  United  States,  be  an  interference  with  the 
"primary  disposal"  of  the  public  lands? 

We  do  not  find  it  necessary  to  say  that  the  prospective  pro- 
visions of  the  code  would  violate  the  obligation  of  a  contract. 
But  when  the  state  is  prohibited  from  interfering  with  the 
primary  disposal  of  the  public  lands  of  the  United  States,  there 
is  included  a  prohibition  of  any  attempt  on  the  part  of  the 
state  to  preclude  the  United  States  from  transferring  to  its 
grantees  its  full  and  complete  title  to  the  land  granted,  with 
all  its  incidents. 

The  same  rule  must  apply  to  homesteaders,  pre-emptioners, 
and  other  purchasers  under  the  laws  of  the  United  States.  To 
say  that  hereafter  the  purchaser  from  the  United  States  shall 
not  take  any  interest  in  the  water  flowing  to,  or  in  the  trees 
on,  or  the  mines  beneath,  the  surface, — but  others  of  our  citi- 
zens shall  have  the  privilege  of  removing  all  these  things, — is 
to  say  that  hereafter  the  United  States  shall  not  sell  the  water, 
wood,  or  ores. 

It  would  seem,  then,  that  the  only  persons  who  can  find  it 
necessary  to  resort  to  section  1422  of  the  Civil  Code  as  the 
protection  of  their  right  to  the  flow  of  running  waters  are  the 
state  (as  the  owner  of  lands  granted  to  it  by  the  United  States) 
and  grantees  from  the  state,  unless  it  be  where  the  adverse 
parties  are  merely  occupants  of  land  and  water  respectively 
on  the  public  lands  of  the  United  States  or  of  the  state. 

While  the  common  law  has  been  in  force,  not  only  has  the 
right  of  eminent  domain  been  in  the  state,  but  the  state  has 
been  the  direct  owner  of  the  swamp  and  overflowed  as  well  as 
of  other  lands  derived  by  grant  from  the  general  government. 
The  state  legislature  has  had  power,  not  only  to  dispose  of  the 
lands  and  waters  so  held  separately,  as  a  private  person  may 
dispose  of  his  own,  but  has  had  power  to  authorize  the  diver- 
sion of  waters  from  such  lands,  either  by  private  persons,  the 
owners  of  lands  above,  or  by  private  persons,  on  public  lands 
of  the  United  States  lying  above.  From  the  date  of  such 
general  authorization,  a  grantee  of  land  from  the  state  would 
take  subject  to  appropriations  of  water  actually  made,  and  if 
the  statutes  were  broad  enough,  and  operated  a  reservation  of 


Lux  v.  HAGGIN.  107 

waters  in  favor  of  appropriations  which  might  afterward  be 
made,  would  take  subject  to  subsequent  appropriations. 

But  the  statutes  of  the  state  cannot  properly  be  construed 
as  reserving  from  grants  of  state  land  the  use  of  the  waters 
flowing  thereon,  for  the  benefit  of  those  who  shall  subsequently 
take  or  appropriate  them  either  on  or  off  the  state  lands. 

The  state  has  granted  the  waters  running  to  its  own  lands, 
by  authorizing  the  diversion  of  waters  from  its  lands,"  and 
doubtless  such  grantees  acquire  the  state  property  in  the 
waters  whenever  the  state  has  a  property  in  the  waters  at  the 
time  of  the  grant.  But  can  it  be  said  that  from  the  date  of 
the  code,  the  state  reserved  its  waters  in  trust  for  those  who 
should  afterward  appropriate  them  ? 

Our  attention  has  been  called  to  no  provision  of  the  laws 
providing  for  the  disposition  of  the  state  lands  which  con- 
templates such  reservation.  And  we  see  nothing  in  the  law 
authorizing  appropriations  of  water  which  can  reasonably 
bear  such  interpretation.  We  must  look  for  the  definition  of 
"riparian  rights" — protected  by  section  1422 — to  the  common 
law,  which  (when  not  in  conflict  with  or  repugnant  to  the 
constitution  and  state  statutes)  had  been  the  law  of  the  state 
for  more  than  twenty  years.  The  section  which  provides  "the 
rights  of  riparian  proprietors  are  not  affected  by  the  provi- 
sions of  this  title ' '  declares,  in  effect,  that  those  appropriating 
water  under  the  previous  sections  shall  not  acquire  the  right 
to  deprive  of  the  flow  of  the  stream  those  who  shall  have  ob- 
tained from  the  state  a  title  to  or  right  of  possession  in  ripa- 
rian lands  before  proceedings  leading  to  appropriation  shall 
be  taken.  Such  is  the  meaning  of  the  words  employed. 

The  right  to  the  use  of  the  waters  as  part  of  the  land  once 
vested  in  its  private  grantee,  the  state  has  no  power  to  devest 
him  of  the  right,  except  on  due  compensation.  It  is  for  those 
who  claim  that  since  the  code  enactments  riparian  rights  have 
never  vested  in  the  state's  grantees  to  point  to  the  statute 
which  expressly  so  declares,  or  which,  by  necessary  implication, 
operates  a  reservation  of  all  the  waters  on  the  state  lands,  for 
the  benefit  of  subsequent  appropriators.  Such  reservation  can 
not  be  assumed,  nor  be  based  on  any  doubtful  interpretation 
of  language. 


108  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  use  of  the  present  tense — "the  rights  of  riparian  pro- 
prietors are  not  affected" — is  not  sufficient  to  justify  a  find- 
ing of  a  reservation  by  the  state  of  all  its  waters. 

It  is  difficult  to  believe  that  the  section,  so  far  as  it  applies 
to  riparian  lands  and  not  those  of  the  state,  is  other  than 
declaratory  of  the  pre-existing  law.  It  certainly  was  in- 
tended to  be  declaratory  in  so  far  as  it  announces  the  protec- 
tion of  all  private  persons  who  had  acquired  riparian  rights 
from  any  source  before  the  provisions  of  the  code  went  into 
operation,  since  (if  the  common-law  right  existed)  such  per- 
sons were  protected  independent  of  the  section.  We  cannot 
presume  that  it  was  intended  to  limit  the  protection  to  those 
private  persons  who  had  then  acquired  riparian  rights  from 
the  United  States  (but  not  through  the  state),  or  from  Spain 
or  Mexico,  and  to  deprive  the  subsequent  grantees  of  such  of 
their  riparian  rights.  The  legislature  had  no  power  to  de- 
prive of  their  right  to  water  the  subsequent  grantees  or  suc- 
cessors of  those  private  persons  in  whom  the  right  had  vested 
prior  to  the  code.  The  attempt  would  have  been  violative  of 
constitutional  principles.  As  the  language  of  section  1422  will 
bear  a  reasonable  interpretation  which  will  render  it  applica- 
ble everywhere  within  the  limits  of  the  state,  and  to  all  classes 
of  riparian  proprietors  (without  impinging  upon  the  vested 
interests  of  any),  we  ought  not  so  to  construe  it  as  that,  if 
enforced  with  respect  to  all,  it  would  deprive  any  man  of  his 
constitutional  right. 

Our  conclusion  on  this  branch  of  the  case  is,  that  section 
1422  saves  and  protects  the  riparian  rights  of  all  those  who, 
under  the  land  laws  of  the  state,  shall  have  acquired  from  the 
state  the  right  of  possession  to  a  tract  of  riparian  land,  prior 
to  the  initiation  of  proceedings  to  appropriate  water  in  accord- 
ance with  the  provisions  of  the  code. 

If  section  1422  of  the  Civil  Code  were  interpreted  as  saving 
all  riparian  rights  actually  vested  before  the  section  took  ef- 
fect, the  mere  appropriator  could  acquire  no  rights  to  water 
by  virtue  of  the  provisions  of  the  code,  but  would  be  left  to 
the  enjoyment  of  such  as  he  might  secure  by  convention  with 
the  riparian  proprietors.  If  all  riparian  rights  existing  when 
the  section  was  adopted  were  preserved  by  section  1422,  then, 
inasmuch  as  both  the  state  and  the  United  States  were  at  that 


Lux  v .  HAGGIN.  109 

time  riparian  owners,  the  lands  of  neither  government  would 
be  affected  by  the  other  sections  relating  to  water  rights ;  nor, 
of  course,  would  any  subsequent  grantee  of  either  government 
be  affected  by  those  provisions. 

It  is  contended  by  counsel  for  appellants  that  the  rights 
of  the  state  to  the  flow  of  the  waters  on  her  lands  were  not 
affected  by  the  code,  for  the  further  reason  that  the  code  pro- 
visions were  intended  merely  to  continue  or  supply  a  rule  for 
deciding  disputes  ''on  the  public  lands  of  the  United  States." 

But  we  think  it  was  the  manifest  purpose  of  the  legislature 
— derivable  from  title  8,  as  a  whole,  read  in  view  of  the  ju- 
dicial and  legislative  history  of  the  state — that  the  rule  should 
be  the  same  whether  applied  to  mere  occupants  of  the  lands 
of  the  state  or  of  the  United  States;  and  that  the  riparian 
rights  of  the  state,  as  owner  of  lands,  were  not  preserved  by 
section  1422. 

As  we  have  seen,  by  resort  .to  the  presumption  of  a  grant 
or  license  from  the  owner  of  the  paramount  title,  our  courts 
from  an  early  day  have  determined  controversies  between  oc- 
cupants of  waters  or  of  lands  and  waters, — on  the  public  do- 
main of  the  United  States ;  holding  the  prior  possessor  to  have 
the  better  right.  And  during  its  first  session  the  state  leg- 
islature provided  a  mode  by  which  one  might  acquire  a 
constructive  or  statutory  possession  of  a  portion  of  the  unsur- 
veyed,  and  as  yet  unsalable,  public  lands  of  the  United  States, 
to  be  accepted  by  the  courts  as  proving  a  right  to  the  posses- 
sion against  all  but  the  government.  (Act  "prescribing  the 
mode  of  maintaining  and  defending  necessary  actions  on 
lands  belonging  to  the  United  States-."  Stats.  1850,  pp.  20- 
23.)  The  validity  of  such  acts,  so  far  as  they  affect  mere  in- 
truders on  the  public  land,  or  those  entering  thereon  with  the 
tacit  consent  of  the  government,  has  not  heretofore  been  ques- 
tioned. The  right  of  the  prior  occupant  of  the  land  or  water 
on  the  public  domain  of  the  United  States  being  recognized  by 
the  courts,  it  cannot  be  doubted  that  the  legislature  had  power 
to  establish  or  change  a  rule  of  evidence  according  to  which 
the  prior  occupation  is  to  be  proved.  With  reference  to  ap- 
propriations of  waters  on  public  lands,  for  example,  the  leg- 
islature had  power  to  require  that  the  notice  of  appropriation 
should  contain  certain  statements,  that  work  should  be  com- 


110  WATER  RIGHTS  AND  IRRIGATION  LAW. 

meneed  within  a  definite  time,  and  be  completed  within  a 
named  period,  etc.  Neither  the  state  legislature  nor  the  state 
courts  have  any  independent  power  to  interfere  with  the  pri- 
mary disposal  of  the  public  lands  of  the  United  States,  nor  to 
detract  from  the  estates  in  such  lands  granted  under  the  laws 
of  the  United  States.  Nevertheless,  whilst  a  body  of  land  and 
the  waters  thereon  shall  remain  a  portion  of  the  public  lands 
of  the  United  States,  the  rights  of  mere  possessors,  or  as- 
serted possessors,  thereon  will  continue  to  be  determined,  as 
between  themselves,  by  the  law  applicable  to  such  controversies 
as  the  same  was  laid  down  by  our  courts  previous  to  the  code 
enactments,  except  so  far  as  it  may  have  been  modified  by 
the  provisions  of  the  code.  The  legislation  of  the  state  (with 
reference  to  occupations  on  the  public  lands),  like  the  judicial 
decisions,  is  based  on  the  presumption  that  the  general  gov- 
ernment has  permitted  the  occupation  of  v.-ater,  or  of  land 
with  the  water  thereon,  as  the  case  may  be.  But  this  (so  far 
as  the  operation  of  the  state  law  is  concerned)  necessarily 
excludes  the  United  States,  although  a  riparian  owner  when 
the  code  was  adopted,  from  the  saving  clause  of  section  1422. 

The  doctrine  of  presumption  is  enforced,  however,  not  only 
on  lands  of  the  United  States,  but  on  lands  of  the  state  and 
of  private  persons.  This  has  been  the  rule  applied  in  every 
action  of  ejectment  where  the  plaintiff  has  recovered  on  his 
prior  possession.  In  such  cases  it  has  repeatedly  been  held 
that  the  defendant  cannot  be  permitted  to  prove  title  in  a  third 
party  unless  he  connects  himself  with  it.  The  prior  possessor 
is  presumed  to  have  acquired  that  title  as  against  the  mere 
intruder  on  his  possession.  In  controversies  upon  the  state 
lands  the  courts  have  not  heretofore  permitted  the  title  of  the 
state  to  be  proved,  by  one  not  deraigning  from  the  state,  for 
the  purpose  of  destroying  the  asserted  right  of  the  prior  pos- 
sessor. Even  where  a  court  should  be  called  on  to  take  judi- 
cial notice  of  the  state  title,  and  that  no  law  had  been  passed 
for  the  disposition  of  the  state  lands,  it  would,  in  the  interest 
of  peace  and  good  order,  presume,  ' '  contrary  to  the  fact, ' ' — as 
was  said  by  Mr.  Justice  Heydenf eldt, — not  only  that  the  prior 
possessor  had  entered  and  occupied  with  the  consent  of  the 
state,  but  that  he  had  acquired  the  state  title. 


Lux  v.  HAGGIN.  Ill 

Prior  to  the  adoption  of  the  code  there  can  be  little  doubt 
that  in  controversies  between  persons  upon  the  lands  of  the 
state,  as  in  like  controversies  upon  lands  of  the  United  States 
(where  neither  of  the  parties  had  derived  title  from  the  gov- 
ernment), the  doctrine  of  priority  of  appropriation  of  water 
alone,  or  of  water  as  a  part  of  land  appropriated,  would  pre- 
vail. These  considerations  create  a  very  strong  presumption 
that  the  riparian  rights  of  the  state  as  a  landed  proprietor 
existing  when  the  sections  of  the  code  went  into  operation  were 
not  intended  to  be  reserved  by  section  1422. 

Inasmuch  as  the  sections  of  the  code  relating  to  water  rights 
(so  far  as  they  relate  to  appropriations  of  water  on  the  public 
lands  of  the  state  or  of  the  United  States)  are  in  furtherance 
and  recognition  of  the  previous  doctrine  of  the  courts  of  the 
state  (according  to  which,  as  it  would  seem,  the  prior  appro- 
priator  of  land,  and  the  water  thereon,  had  the  better  right 
as  against  the  subsequent  appropriator  of  the  water  alone), 
it  may  be  contended  that  section  1422  recognizes  and  reaffirms 
that  part  of  the  rule,  and  protects  the  riparian  occupant  on 
the  public  lands  of  the  state  from  a  subsequent  appropriation 
of  water  on  or  above  those  lands.  Either  so  (it  may  be  ar- 
gued) or  section  1422  has  no  meaning  or  application  when  the 
controversy  is  between  mere  occupants  on  the  public  lands. 

But  however  this  might  be,  where  both  parties  were  mere 
possessors  on  public  lands  of  the  United  States,  the  title  8  of 
the  Civil  Code,  so  far  as  it  relates  to  waters  flowing  to  the 
lands  of  the  state,  is  more  than  an  acknowledgment  of  the 
doctrine  of  prior  appropriation  on  public  lands.  It  is  plainly 
a  concession  to  those  who  may  comply  with  its  conditions, 
which  operates  as  a  grant  of  the  servitude  when  the  conditions 
are  fully  performed,  relating  back  to  the  date  of  the  commence- 
ment to  perform.  It  is  a  concession,  however,  only  of  the 
rights  to  the  water  which  the  state  shall  not  already  have 
parted  with  when  the  appropriation  shall  be  made. 

XII.  The  statute  of  April  13,  1850,  adopts  the  common 
law  of  England,  not  the  civil  law,  nor  the  "ancient  common 
law"  of  the  civilians,  nor  the  Mexican  law. 

In  ascertaining  the  common  law  of  England,  we  may  and 
should  examine  and  weigh  the  reasoning  of  the  decisions,  not 


112  WATER  RIGHTS  AND  IRRIGATION  LAW. 

only  of  the  English  courts,  but  also  of  the  courts  of  the  United 
States  and  of  the  several  states,  down  to  the  present  time. 
We  are  not  limited  to  the  consideration  of  the  English  deci- 
sions rendered  prior  to  July  4,  1776. 

The  possessory  rights  of  occupants  of  portions  of  the  public 
lands,  or  of  waters  thereon  (recognized  by  the  California 
courts) ,  are  protected  by  the  common  law. 

It  must  be  assumed,  as  the  cause  is  now  presented,  that  the 
plaintiffs  obtained  from  the  state  title  to  riparian  lands  prior 
to  an  appropriation  of  water  flowing  to  those  lands  by  the 
defendant;  because,  as  we  shall  see,  the  court  below  erred  in 
refusing  to  admit  certain  evidence  bearing  on  that  issue.  Inas- 
much, then,  as  the  defendant  here  has  acquired  no  right  to 
the  water  by  it  appropriated — by  reason  of  a  reservation,  ex- 
press or  implied,  in  the  grant  to  the  state  or  in  the  convey- 
ances to  the  plaintiffs — which  it  can  assert  against  the 
plaintiffs;  and  as  there  is  no  "public  policy"  arising  out  of 
physical  conditions  existing  within  our  borders,  or  from  the 
implied  license  to  private  persons  to  enter  upon  and  occupy 
portions  of  the  public  lands,  or  the  waters  thereon,  while  they 
remain  such,  which  compels  or  authorizes  us  to  disregard  the 
general  law,  or  which  should  control  or  modify  the  meaning 
which  should  otherwise  be  attributed  to  the  statutes  of  the 
United  States, — it  follows  that  the  defendant  has  no  right 
to  divert  the  water  from  the  lands  of  the  plaintiffs  unless  that 
right  exists  under  and  by  virtue  of  the  common  law,  as  the 
same  was  adopted  in  and  by  the  act  of  April  13,  1850. 

It  is  said  by  counsel  for  respondent  that  the  common  law 
adopted  by  the  act  of  1850  is  the  common  law  as  the  same 
was  administered  prior  to  July  4,  1776.  Throop  v.  Hatch, 
3  Abb.  Pr.  23,  is  referred  to  as  authority  for  this  statement. 
But  there  the  question  was,  what  was  presumed  to  be  the  law 
of  another  state,  in  the  absence  of  averment  and  proof  with 
respect  to  it.  It  was  held  there  was  no  presumption  that  the 
statutes  of  another  state  were  the  same  as  those  of  New  York. 
It  is  held  in  California  that,  in  the  absence  of  evidence  on  the 
subject,  it  would  be  presumed  that  the  statutes  of  another 
state  are  the  same  as  ours.  .  .  . 

A  different  question  from  the  foregoing  is  the  question 
whether,  in  adopting  "the  common  law  of  England,"  the 


Lux  v.  HAGGIN.  113 

legislature  adopted  a  law  derivable  from  the  usages  and  cus- 
toms of  miners  and  other  occupants  of  public  lands.  It  is 
alleged,  in  effect,  that  the  last  was  a  different  law,  with  refer- 
ence to  waters,  from  the  common  law  as  enforced  in  England 
and  other  states  of  the  Union.  If  this  were  true,  it  certainly 
was  not  adopted  by  the  statute.  The  substitution  of  what  is 
now  called  "appropriation"  for  the  English  rule  would  not  be 
a  mere  modification  of  the  common  law ;  and  strictly  speaking, 
the  common  law  is  not  modified  by  an  application  of  its  prin- 
ciples to  new  facts.  It  is  quite  certain  that  the  alleged  modi- 
fication could  not  have  been  brought  about  by  a  general  prac- 
tice which  could  be  upheld,  upon  the  doctrine  of  license  or 
grant,  in  accordance  with  the  common  law. 

In  entertaining,  "against  the  fact,"  the  presumption  that 
the  occupants  of  land  or  water  on  the  public  domain  had  re- 
ceived grants  from  the  paramount  sources  of  title,  the  courts 
of  California  did  not  repeal  or  modify  the  common  law;  but 
immediately  after  its  adoption  they  began  to  follow  the  com- 
mon law  in  that  regard.  The  English  courts  had  frequently 
held  that  a  grant  from  the  crown  would  be  presumed  from 
lapse  of  time.  The  courts  here  had  held  that  lapse  of  time 
was  only  a  reason  for  the  presumption,  and  that  upon  com- 
mon-law principles  it  might  be  sustained  on  other  facts. 
Upon  this  common-law  presumption  is  based  the  whole  fabric 
of  the  law  which  determines  conflicting  possessory  rights  on 
the  public  domain.  The  presumption  has  no  place  where 
either  party  has  received  a  grant  from  the  government ;  for  a 
presumptive  grant  (except  perhaps  when  based  on  lapse  of 
time)  can  never  be  asserted  against  an  actual  grant. 

By  the  act  of  1850,  the  common-law  presumption  was 
adopted,  as  part  of  the  common  law ;  as  was  also  the  application 
of  the  presumption,  as  subsequently  held  by  the  courts,  since 
its  subsequent  reasonable  application  was  implicitly  comprised 
in  the  presumption  itself.  Thus  the  principles  of  the  common 
law  fully  protected  the  just  possessory  rights  of  occupants  on 
the  public  lands.  In  adopting  the  common  law,  therefore, 
the  legislature  adopted  the  common  law,  and  not  some  other 
and  different  law. 
8 


114  WATER  RIGHTS  AND  IRRIGATION  LAW. 

"The  customs,  usages,  and  regulations  of  the  bar  or  dig- 
gings" were  afterward,  by  express  statute,  declared  to  be  ad- 
missible as  evidence  in  "actions  respecting  mining  claims." 
(Practice  Act,  1861,  sec.  621.)  It  has  always  been  held  that 
local  regulations,  etc.,  accepted  by  the  miners  of  a  particular 
district,  are  binding  only  as  to  possessory  rights  within  the 
district,  and  that  they  must  be  proved  as  a  fact.  When  they 
have  been  proved,  the  courts  have  considered  them  only  for 
the  purpose  of  ascertaining  the  extent  and  boundaries  of  the 
alleged  possessions  of  the  respective  parties  to  a  litigation, 
and  the  priority  of  possessory  right  as  between  them;  or  for 
the  purpose  of  ascertaining  whether  the  right  of  action  has 
been  lost  or  abandoned  by  failure  to  work  and  occupy  in  the 
manner  prescribed.  When  the  priority,  limits,  and  continu- 
ation of  a  possession  have  thus  been  ascertained,  the  courts 
have  proceeded  to  apply  the  presumption  of  grant  from  the 
paramount  source,  a  presumption,  we  repeat,  sustainable  on 
common-law  principles.  It  is  also  true  (where  no  special 
"mining  laws"  have  been  proved)  that,  in  ascertaining  the 
limits  of  a  mining  possession,  the  courts  have  said  the  same 
common-law  principles  are  to  be  relied  upon  as  those  which 
regulate  rights  to  the  possession  of  agricultural  lands,  although 
the  indicia  of  possession  are  not  necessarily  the  same.  (Eng- 
lish v.  Johnson,  17  Cal.  107;  S.  C.,  76  Am.  Dec.  574.)  The 
possession  in  such  case  may  be  proved  by  satisfactory  evidence 
of  notorious  acts  of  occupation,  reference  being  had  to  the 
nature  of  the  lands,  the  uses  to  which  they  can  be  put,  and  to 
the  general  practices  or  customs  of  the  region  with  respect 
to  the  occupation  of  lands  of  the  particular  character.  But 
the  possession,  however  proved,  being  established,  the  pre- 
sumption of  grant  arises. 

The  act  of  1850  adopts  the  common  law  of  England,  not 
the  civil  law;  nor  the  jus  commune  antiquum,  or  Roman  "law 
of  nature"  of  some  of  the  civil-law  commentators  (Braly  v. 
Reese,  51  Cal.  447,  note);  nor  the  Mexican  law;  nor  any 
hybrid  system.  And  the  expression  "common  law  of  Eng- 
land" designates  the  English  common  law  as  interpreted  as 
well  in  the  English  courts  as  in  the  courts  of  such  of  the  states 
of  the  Union  as  have  adopted  the  English  common  law.  We 
cannot  presume  that  the  members  of  the  legislature,  even  at 


Lux  v.  HAGGLE.  115 

that  day,  were  utterly  ignorant  of  the  climate  and  soil  of  the 
country  in  which  they  lived ;  and  there  were  included  in  their 
number  many  natives  of  California,  who  must  be  presumed 
to  have  represented  the  intelligence  of  a  race  which,  for  sev- 
eral generations,  had  been  familiar  with  natural  conditions 
here  existing.  The  report  of  the  proceedings  of  the  legis- 
lature shows  that  there  was  a  considerable  minority  in  favor 
of  the  adoption  of  the  civil  law;  and  there  are  circumstances 
appearing  from  the  proceedings  tending  to  prove  that  the 
advantages  of  each  system,  as  the  fundamental  law  of  the 
future,  were  discussed  and  fully  considered.  Under  these 
circumstances,  we  must  believe  that  if  it  had  been  intended 
to  exclude  the  common  law  as  to  the  riparian  right,  the  inten- 
tion would  have  been  expressed.  Moreover,  it  is  a  well-estab- 
lished principle,  that  when  the  legislature  of  this  state  has 
enacted  a  statute  like  one  previously  existing  in  other  states, 
the  courts  here  may  look  to  the  interpretation  of  such  statute 
by  the  courts  of  the  other  states.  (People  v.  Webb,  38  Cal. 
477 ;  People  v.  Coleman,  4  Cal.  50 ;  S.  C.,  60  Am.  Dec.  581 ; 
Taylor  v.  Palmer,  31  Cal.  254.) 

"Whatever  the  law  pre-existing  the  statute  of  1850,  it  was 
then  and  there  done  away  with,  except  as  it  agreed  with  the 
common  law.  The  matter  was  settled  if  the  lawmakers  had 
power  to  settle  it. 

And  it  was  not  the  common  law  "as  the  same  was  adminis- 
tered" at  a  certain  date  that  was  adopted,  but  the  common 
law.  Indeed,  the  administration  of  the  law  in  particular  cases 
may  be  a  very  different  thing  from  the  law  itself.  (Note: 
We  give  counsel  for  respondent  the  benefit  of  the  last  sugges- 
tion, to  be  applied,  if  applicable,  to  the  present  decision.) 
The  statute  adopts  the  common  law  of  England,  except  where 
inconsistent  with  the  constitutions  and  statutes,  and  there  can 
be  no  good  reason  why,  to  ascertain  the  common  law  of  Eng- 
land, we  should  not  refer  to  the  decisions  of  English  and 
American  courts  (in  states  where  the  common  law  prevails) 
rendered  before  and  subsequent  to  the  date  of  the  statute. 

Looking  at  the  whole  array  of  adjudications,  if  we  find  a 
question  has  often  been  decided  in  one  way, — the  cases  preced- 
ing the  line  of  corroborative  and  conformable  decisions  being 
adverted  to  in  them,  analyzed,  and  held  not  necessarily  conflic- 


116  WATER  EIGHTS  AND  IRRIGATION  LAW. 

tive, — the  rule  of  the  common  law  involved  or  presented  in  the 
question  ought  to  be  considered  as  settled. 

There  is  no  pretense  that  the  courts  ever  were  infallible; 
it  is  sometimes  held  that  a  previous  decision  does  not  declare 
the  law.  Where  the  rule  has  become  settled,  it  is  not,  as  op- 
posed to  any  former  decision,  a  new  rule,  but  must  be  held 
to  have  been  the  law  from  the  beginning,  because  "right  rea- 
son" has  always  been  the  prime  element  of  the  law.  And  in 
such  case,  if  anything  has  been  said  in  an  earlier  decision — 
which  cannot  be  resolved  into  mere  dictum,  or  as  applicable  to 
the  peculiar  facts — that  apparently  conflicts  with  the  settled 
rule,  it  is  considered  to  be  an  erroneous  exposition  of  the  law. 
Courts  do  not  repeal  former  decisions;  when  they  reverse 
them  they  hold  they  were  never  law. 

The  common  law  of  England  may  be  said  to  consist  of  a 
collection  of  principles  found  in  the  opinions  of  sages,  or  de- 
duced from  universal  and  immemorial  usage,  and  receiving 
progressively  the  sanction  of  the  courts.  It  was  imported  by 
our  colonial  ancestors,  so  far  as  it  was  applicable,  and  was 
sanctioned  by  royal  charters.  (1  Kent's  Com.  473.)  The  best 
evidence  of  the  common  law  is  found  in  the  decisions  of  the 
courts,  contained  in  numerous  volumes  of  reports,  and  in  the 
treatises  and  digests  of  learned  men,  "which  have  been  multi- 
plying from  the  earliest  periods  of  English  history  down  to 
the  present  time."  (Id.) 

There  is  no  implied  exception  in  the  words  "so  far  as  appli- 
cable" which  would  exclude  the  common  law  from  the  colonial 
law,  except,  perhaps,  when  the  question  was  ab  ovo,  and  no 
principle  of  the  common  law  could  have  appropriate  bearing 
upon  it.  Since  the  Revolution  the  common  law  of  England 
has,  of  course,  been  inapplicable  in  the  particulars  that  it  does 
not  harmonize  with  the  political  conditions  on  this  continent. 
Where  it  is  in  conflict  with  our  constitution  of  government, 
it  is  not  part  of  our  law,  because  the  organic  law  is  the  su- 
preme law.  This  would  be  the  case  if  the  statute  were  silent ; 
and,  as  we  have  seen,  the  statute  of  1850  does  not  adopt  the 
common  law  so  far  as  "  it  is  repugnant  to  or  inconsistent  with 
the  Constitution  of  the  United  States,  or  the  constitution  and 
laws  (statutes)  of  the  state  of  California," 


Lux  v.  HAGGIN.  117 

We  know  of  no  decisions  which  intimate  that  a  difference 
in  climatic  or  geographical  conditions  may  operate  to  transfer 
a  right  of  property  from  those  in  whom  a  right  of  property  is 
vested  by  the  common  law.  To  so  hold  would  be  an  attempt 
to  do  that  which,  as  contended  by  counsel,  could  not  be  done 
with  reference  to  the  common  use  to  which  (as  claimed)  prop- 
erty was  dedicated  by  the  Mexican  law.  Such  conditions  may, 
perhaps,  affect  the  mode  of  enjoyment  of  the  common  right 
of  all  the  riparian  proprietors  on  the  same  stream.  Xor  do  we 
know  of  cases  where  the  courts  in  the  United  States  have 
undertaken  to  change  the  common  law.  We  think  it  is  abun- 
dantly proved  by  Mr.  Houck  that  there  has  been  no  substantial 
change  in  the  United  States  in  the  law  with  respect  to  navi- 
gable rivers  (although  the  contrary  has  been  asserted),  but 
that  the  true  test  of  navigability  was  always  the  fact  of  a  river 
being  in  fact  navigated  or  capable  of  being  navigated ;  that  all 
streams  above  tide  are  not  in  England  innavigable.  (Houck 
on  Navigable  Rivers,  passim.)  .  .  . 

XIII.  The  doctrine  of  "appropriation,"  so  called,  is  not 
the  doctrine  of  the  common  law. 

Counsel  for  respondent  assert  that  the  property  in  the  use 
of  waters  is,  by  the  common  law,  acquired  only  by  appropria- 
tion. 

Mason  v.  Hill,  5  Barn.  &  Adol.  1,  was  decided  in  the  king's 
bench  in  1833.  The  court  there  said:  "The  position  that  the 
first  occupant  of  water  for  a  beneficial  purpose  has  a  good  title 
to  it  is  perfectly  true  in  this  sense,  that  neither  the  owner  of 
the  land  below  can  back  the  water,  nor  the  owner  of  the  land 
above  divert  it,  to  his  prejudice.  In  this,  as  in  other  cases  of 
real  property,  possession  is  a  good  title  against  a  wrongdoer. ' ' 
He  adds  that  the  owner  of  a  mill,  if  the  stream  is  obstructed 
or  diverted,  may  recover  consequential  damages  to  his  mill 
(Rutland  v.  Bowler,  Palmer,  290),  and  to  the  same  effect  are 
some  American  cases.  "But,"  says  Lord  Denman,  in  Mason 
v.  Hill,  "it  is  a  very  different  question  whether  he  can  take 
from  the  land  below  one  of  its  natural  advantages,  which  is 
capable  of  being  applied  to  valuable  purposes,  and  generally 
increases  the  fertility  of  the  soil  even  when  unapplied;  and 
deprive  him  of  it  altogether  by  anticipating  him  in  its  appli- 


119  WATER  RIGHTS  AND  IRRIGATION  LAW. 

cation  to  a  useful  purpose."  .  .  .  We  think  that  this  proposi- 
tion has  originated  in  a  mistaken  view  of  the  principles  laid 
down  in  the  decided  cases  of  Bealy  v.  Shaw;  Saunders  v. 
Newman;  Williams  v.  Morehcad,  2  Barn.  &  C.  915.  It  ap- 
pears to  us  also  that  the  doctrine  of  Blackstone  and  the  dicta 
of  learned  judges  in  some  of  those  cases,  and  in  that  of  Cox 
v.  Matthews,  have  been  misconceived.  .  .  . 

It  has  been  suggested  that  what  is  said  on  the  subject  in 
Mason  v.  Hill  was  mere  dictum,  since  it  is  claimed  that  the 
case  might  have  been  decided  on  the  theory  of  "appropria- 
tion. ' '  The  case  shows  that  the  question  was  fairly  presented, 
and  was  fully,  and  in  one  point  of  view  necessarily,  considered. 

Mr.  Angell,  however,  cites  a  case  of  as  early  a  date  as  32 
Edward  III,  where  an  assize  of  nuisance  was  brought  by  A 
against  B,  for  that  B  had  made  a  trench  from  a  river,  and 
drawn  away  thereby  a  part  of  the  water  and  stream  another 
way  from  that  in  which  it  did  formerly  use  to  run;  and  the 
assize  passed  for  the  plaintiff;  and  it  was  adjudged  that  the 
water  should  be  removed  to  its  ancient  channel  at  the  cost  of 
the  defendant.  .  .  . 

In  Chasemon  v.  Richards,  7  H.  L.  Cas.  384,  Lord  Winsley- 
dale  declares :  ' '  We  may  consider,  therefore,  that  this  proposi- 
tion is  indisputable,  that  the  right  of  the  proprietor  to  the  en- 
joyment of  a  watercourse  is  a  natural  right,  and  is  not  acquired 
by  occupation, ' '  etc. 

In  examining  the  numerous  cases  which'  establish  that  the 
doctrine  of  ' '  appropriation ' '  is  not  the  doctrine  of  the  common 
law,  we  meet  an  embarrassment  of  abundance.  The  authori- 
ties referred  to  under  the  next  head,  and  many  others,  clearly 
hold  to  the  contrary  of  the  proposition  contended  for  by  coun- 
sel for  respondent. 

XIV.  Riparian  rights.  By  the  common  law  the  right  of 
the  riparian  proprietor  to  the  flow  of  the  stream  is  inseparably 
annexed  to  the  soil,  and  passes  with  it,  not  as  an  easement  or 
appurtenance,  but  as  part  and  parcel  of  it.  Use  does  not  cre- 
ate the  right,  and  disuse  cannot  destroy  or  suspend  it.  The 
right  in  each  extends  to  the  natural  and  usual  flow  of  all  the 
water,  unless  where  the  quantity  has  been  diminished  as  a  con- 


Lux  v.  HAGGIN.  119 

sequence  of  the  reasonable  application  of.it  by  other  riparian 
owners  for  purposes  hereafter  to  be  mentioned. 

In  the  case  now  here  there  is  no  question  as  to  the  use  of 
water  for  propelling  machinery.  And  in  treating  of  the  ripa- 
rian right  at  common  law,  we  shall  reserve  (for  the  present) 
the  consideration  of  the  effect  of  the  diminution  of  the  flow  of 
a  stream,  by  reason  of  its  consumption  by  a  riparian  proprie- 
tor, to  satisfy  what  has  been  called  "natural  wants," — its  rea- 
sonable consumption  by  cattle  or  for  domestic  uses, — and  also 
the  effect  of  absorption  and  evaporation  by  reason  of  its  appli- 
cation to  the  purposes  of  irrigation. 

As  to  the  nature  of  the  right  of  the  riparian  owner  in  the 
water,  by  all  modern  as  well  as  ancient  authorities  the  right  in 
the  water  is  usufructuary,  and  consists  not  so  much  in  the 
fluid  itself  as  in  its  uses,  including  the  benefits  derived  from 
its  momentum  or  impetus.  (Angell  on  Watercourses,  sec.  94, 
and  notes.) 

But  the  right  to  a  watercourse  begins  ex  jure  naturae,  and 
having  taken  a  certain  course  naturally,  it  cannot  be  diverted 
to  the  deprivation  of  the  rights  of  the  riparian  owners  below. 
So  say  all  the  common-law  text-books  and  the  decisions.  .  .  . 

It  has  always  been  held  that  a  grant  of  land  carries  with  it 
the  water  flowing  over  the  soil.  The  well-known,  maxim, 
"Cujus  est  solum,  ejus  est  usque  ad  coelum,"  inculcates  that 
land,  in  its  legal  signification,  has  an  indefinite  extent  upward. 

We  need  not  add  that  rights  to  the  use  of  water  may  be  ac- 
quired by  grant,  under  some  circumstances  by  assent,  and  by 
adverse  user  and  possession. 

It  is  unnecessary  to  pursue  the  subject  further,  or  to  refer 
to  the  many  text-books  and  decisions  of  the  courts  in  England, 
and  in  other  states,  which  fully  support  the  proposition  laid 
down  in  the  foregoing  title.  (No.  XIV.)  .  .  . 

XV.  By  our  law  the  riparian  proprietors  are  entitled  to  a 
reasonable  use  of  the  waters  of  the  stream  for  the  purpose  of 
irrigation.  What  is  such  reasonable  use  is  a  question  of  fact, 
and  depends  upon  the  circumstances  appearing  in  each  par- 
ticular case.  .  .  . 

Judgment  and  order  reversed,  and  cause  remanded  for  a 
new  trial. 


120  .WATER  EIGHTS  AND  IRRIGATION  LAW. 


Mode  of  Appropriation — Right  of  Way — Effect  of  Posting 

Notice. 

ELENA    P.    de    WOLFSKILL,    Appellant,    v.    GEO.    A. 

SMITH  and  DATUS  E.  MYERS,  Respondents. 

(5  Gal.  App.  175,  89  Pac.  1001.) 

SHAW,  J. — Appeal  from  judgment  in  favor  of  defendants. 
This  action  involves  the  right  to  water  flowing  from  artesian 
wells  located  upon  government  land. 

It  is  based  upon  the  following  facts :  Some  time  during  the 
year  1900  an  oil  company  commenced  boring  for  oil  in  a  can- 
yon in  the  southeast  quarter  of  the  northwest  quarter  of  sec- 
tion 4,  township  3  south,  range  2  west,  S.  B.  M.  It  continued 
the  prosecution  of  its  work  until  January,  1901,  when,  after 
having  bored  three  wells  and  found  no  oil  or  other  mineral 
substance,  it  abandoned  work.  At  the  time  of  the  commence- 
ment of  said  work,  and  up  to  October  20,  1902,  the  said  land 
was  unsurveyed  land  of  the  government,  and,  except  as  to  the 
time  that  said  oil  company  was  prosecuting  said  work,  was  un- 
occupied. The  three  wells  bored  are  in  line  with  the  bed  of 
the  canyon,  distant  about  five  hundred  feet  apart.  The  lower 
well  has  since  its  completion  by  said  oil  company  flowed  five 
inches  of  water,  measured  under  a  four-inch  pressure;  the 
second  or  middle  well,  three  inches  under  like  measurement; 
and  from  the  upper  well  no  water  flows  at  all.  On  the  ninth 
day  of  October,  1902,  and  after  the  oil  company  had  aban- 
doned all  work  upon  the  premises  upon  which  said  wells  were 
located,  it  executed  to  the  plaintiff  a  deed  whereby,  for  a  valu- 
able consideration,  it  purported  to  convey  to  said  plaintiff  all 
its  right,  title  and  interest  in  and  to  said  forty  acres  of  land 
and  said  wells  and  the  water  therein  and  flowing  therefrom. 
That  thereafter,  on  October  13,  1902,  plaintiff  posted  in  a  con- 
spicuous place  at  each  of  said  wells  a  notice  of  appropriation, 
as  follows : 

"NOTICE  OF  APPROPRIATION  OF  WATER. 

"Take  notice  that  the  undersigned  claims  fifteen  hundred 
inches  of  water  measured  under  a  four-inch  pressure  flowing 


DE  WOLFSKILL  v.  SMITH.  121 

from  and  at  the  wells  bored  by  the  San  Jacinto  Oil  Company 
on  the  land  which  would  be  the  northwest  quarter  of  section 
four,  township  three  south,  range  two  west,  San  Bernardino 
meridian,  if  said  land  were  surveyed  by  the  United  States,  and 
I  intend  to  divert  said  water  at  the  three  several  points  where 
this  notice  is  posted,  to  wit,  at  each  of  said  wells  bored  by  the 
San  Jacinto  Oil  Company. 

"I  intend  to  use  said  water  for  domestic  and  irrigation  pur- 
poses on  the  land  which  was  known  as  the  Rancho  San  Jacinto 
Nuevo  and  the  Morena,  Lakeview  and  Alesandro  Colonies  and 
adjoining  lands  in  the  county  of  Riverside,  state  of  Califor- 
nia. 

"I  intend  to  divert  said  water  by  means  of  ditches  of  suffi- 
cient capacity  to  carry  same,  leading  from  each  of  said  points. 

"Dated  the  thirteenth  day  of  October,  1902. 

"ELENA  P.  de  WOLFSKILL. 

"Witness: 

"DAVID  G.  WOLFSKILL.*' 

That  on  October  16th  following  one  copy  of  the  above  notice 
was  filed  for  record  in  the  office  of  the  county  recorder  of 
Riverside  county,  but  that  neither  of  said  notices  or  copy  filed 
was  ever  acknowledged. 

That  on  October  20,  1902,  one  of  the  defendants,  George  A. 
Smith,  entered  upon  and  took  possession  of  the  entire  north- 
west quarter  of  said  section  as  a  homestead  under  the  laws  of 
the  United  States,  and  since  said  date  Smith  has  been  in  pos- 
session of  said  premises  and  of  the  wells  located  thereon  and 
the  water  flowing  therefrom,  and  has  fully  complied  with  the 
provisions  of  the  law  relating  to  the  acquisition  of  government 
land  by  settlers  thereon  for  homesteads. 

That  on  August  21,  1902,  Datus  E.  Myers  did,  under  and  in 
accordance  with  a  certain  act  of  Congress,  file  in  the  proper 
United  States  land  office  certain  documents,  data  ana  maps 
required  by  said  act  of  Congress,  whereby  he  located  a  right 
of  way  for  a  pipe-line  one  hundred  feet  in  width  and  extend- 
ing across  and  through  said  forty  acres  upon  which  said  wells 
were  located,  and  embracing  within  its  boundary  lines  the  land 
upon  which  all  of  said  wells  are  located.  That  thereafter,  on 
November  17,  1902,  said  Myers,  under  the  act  of  Congress  en- 


122  WATER  EIGHTS  AND  IRRIGATION  LAW. 

titled,  "An  act  for  the  relief  of  Thomas  B.  Valentine,"  se- 
lected said  southeast  quarter  of  said  northwest  quarter,  and 
being  the  forty  acres  upon  which  said  wells  were  located,  and 
duly  filed  certificate  of  location  "E.  No.  20"  for  forty  acres  of 
land  issued  in  accordance  with  said  act,  and  said  selection  was 
allowed. 

That  plaintiff  duly  commenced  the  construction  of  the  ditch 
required  to  convey  the  water  sought  to  be  appropriated  to  her 
land  and  prosecuted  the  work  continuously  until,  at  the  in- 
stance of  defendant  Smith,  she  was  enjoined  from  entering  or 
working  upon  the  northwest  quarter  of  said  section  on  which 
he  had,  on  October  20,  1902,  located  his  homestead. 

That  said  defendant  Smith  capped  the  wells,  fenced  the  land 
in  and  prevented  plaintiff  from  doing  any  work  on  said 
premises,  or  taking  or  diverting  any  water  therefrom,  and 
claims  the  right  so  to  do  by  virtue  of  this  claim  and  occupancy 
of  said  premises  as  a  homestead. 

No  issue  as  between  defendants  is  involved,  the  sole  ques- 
tion being  the  right  of  plaintiff  as  against  both  defendants. 
From  a  judgment  in  favor  of  defendants  the  plaintiff  appeals. 

Appellant  bases  her  claim  to  the  water,  first,  upon  the  deed 
of  conveyance  from  the  oil  company;  second,  upon  the  notice 
of  appropriation,  duly  followed  (so  far  as  not  prevented  by 
the  acts  of  defendant  Smith)  by  the  statutory'  steps  required 
for  the  actual  appropriation  of  water  subject  to  appropriation 
under  the  laws  of  this  state.  As  against  plaintiff,  the  defend- 
ant Myers  claims  the  water  by  virtue,  first,  that  the  wells  are 
located  within  the  boundary  lines  of  the  right  of  way  for  the 
pipe-lines  which  he  located  on  August  21,  1902,  which  loca- 
tion was  prior  in  date  to  either  the  alleged  posting  of  notice  of 
appropriation  or  purchase  made  by  plaintiff ;  second,  that  his 
selection  of  the  forty  acres  of  land  under  the  Valentine  scrip 
entitled  him  to  the  flow  of  the  wells  as  against  plaintiff. 

Smith's  claim  is  by  virtue  of  his  being  an  actual  occupant 
of  the  land  under  the  homestead  laws  of  the  United  States. 

Plaintiff's  claim  to  the  wells  or  the  water  flowing  therefrom, 
so  far  as  such  claim  is  based  upon  purchase  and  conveyance 
from  the  oil  company,  which  had  bored  the  wells,  cannot  be 
sustained.  The  fact  that  these  flowing  wells  resulted  from  a 
fruitless  effort  to  discover  oil  gave  the  company  no  right,  title 


DE  WOLFSKILL  v.  SMITH.  123 

or  interest  in  the  land  or  stream  of  water  flowing  thereon. 
The  laws  governing  the  location  of  placer  claims  apply  with 
equal  force  to  the  location  of  oil  claims.  (Miller  v.  Chrisman, 
140  Cal.  441,  98  Am.  St.  Rep.  63,  73  Pac.  1083,  74  Pac.  444.) 
The  oil  company  had  acquired  no  right,  title,  or  interest  in 
the  land  or  water  which  it  could  legally  convey.  No  attempt 
has  been  made  to  comply  with  the  laws  applicable  to  the  loca- 
tion of  an  oil  claim.  Its  rights,  if  it  had  any,  to  the  land, 
wells,  or  water  flowing  therefrom,  terminated  when  it  ceased 
work  thereon  and  abandoned  its  efforts  to  discover  oil.  Ad- 
mitting that  actual  occupation  of  the  land  accompanied  by 
active  work  thereon,  in  the  prosecution  of  its  efforts  to  discover 
oil,  entitled  the  company  to  possession,  such  right  terminated 
upon  a  failure  to  discover  oil,  and  when,  prior  to  October  9th, 
it  abandoned  the  enterprise. 

Where  a  miner  abandons  his  claim,  it  reverts  to  its  original 
status  as  a  part  of  the  unoccupied  public  domain.  A  subse- 
quent locator  takes  it  with  all  shafts,  tunnels  and  drifts,  how- 
ever extensive  or  costly.  (20  Ency.  of  Law,  p.  733.) 

The  same  principle  applies  to  an  oil  claim,  and  it  follows 
that  inasmuch  as  the  San  Jacinto  Oil  Company  had,  prior  to 
October  9,  1902,  abandoned  the  premises  upon  which  the  wells, 
one  flowing  five  inches  and  one  flowing  three  inches,  were  lo- 
cated, the  land  reverted  to  its  original  status  as  a  part  of  the 
public  domain.  It  was,  in  October  13,  1902,  the  date  of  post- 
ing the  notice  of  appropriation  of  the  water,  a  part  of  the 
unoccupied  government  land.  Was  this  water  subject  to 
appropriation  ?  In  our  opinion  it  was.  The  law  is  well  settled 
that  water  flowing  from  springs  upon  the  public  lands  of  the 
United  States  is  subject  to  appropriation  under  section  1410 
of  the  Civil  Code,  which  provides  that  "The  right  to  the  use  of 
running  water  flowing  in  a  river  or  stream,  or  down  a  canyon 
or  ravine,  may  be  acquired  by  appropriation." 

The  fact  that  the  flow  of  the  stream  from  the  spring  is 
caused  by  water  percolating  through  the  soil  does  not  deprive 
it  of  the  character  which  makes  it  subject  to  appropriation. 
"Where  percolating  waters  collect  or  are  gathered  in  a  stream 
running  in  a  defined  channel,  no  distinction  exists  between 
waters  so  running  under  the  surface  or  upon  the  surface  of 
land."  (Cross  v.  Kitts,  69  Cal.  217,  58  Am.  Rep.  558,  10 


124  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Pac.  409.)  Water  passing  through  the  soil,  not  in  a  stream  but 
by  way  of  filtration,  is  not  distinctive  from  the  soil  itself ;  the 
water  forms  one  of  its  component  parts.  In  this  condition  it  is 
not  the  subject  of  appropriation.  When,  however,  it  gathers 
in  sufficient  volume,  whether  by  percolation  or  otherwise,  to 
form  a  running  stream,  it  no  longer  partakes  of  the  nature  of 
the  soil,  but  has  become  separate  and  distinct  therefrom  and 
constitutes  a  stream  of  flowing  water  subject  to  appropriation. 
The  water  in  question  here  is  the  stream  issuing  from  the  wells, 
and  it  is  immaterial  for  the  purposes  of  this  discussion 
whether  this  stream  is  supplied  by  water  percolating  and  filter- 
ing through  the  earth  or  not ;  at  all  events,  it  has  gathered  into 
a  stream.  No  distinction  can  be  made  between  the  water  flow- 
ing from  these  artesian  wells  and  that  flowing  from  the 
springs.  "Water  rising  to  the  surface  of  the  earth  from  be- 
low and  either  flowing  away  in  the  form  of  a  small  stream  or 
standing  as  a  pool  or  small  lake,"  is  the  definition  of  a  spring 
given  by  the  Century  Dictionary.  This  definition  is  equally 
applicable  to  an  artesian  well.  The  stream,  in  either  case, 
may  result  from  the  gathering  of  water  at  some  point,  whether 
near  or  distant,  which  produces  the  stream,  the  flow  of  which 
is  by  natural  causes  forced  to  the  surface.  In  the  one  case 
the  aperture  or  opening  through  which  it  finds  its  way  to  the 
surface  is  the  result  of  nature's  forces;  in  the  other,  it  is  pro- 
duced by  artificial  means ;  the  fact  that  it  is  produced  by  bor- 
ing a  hole  in  the  ground  in  no  wise  changes  its  character.  In 
either  case  the  water  flows  to  the  surface  naturally.  When 
a  stream  of  unappropriated  water  flows  from  an  artesian  well, 
having  its  location  upon  unoccupied  government  land,  it  is  the 
subject  of  appropriation  to  the  same  extent  as  the  waters  of  a 
natural  spring  likewise  located. 

Posting  the  notice  of  claim  to  the  water  does  not  constitute 
an  appropriation.  The  Civil  Code,  section  1416,  provides  that 
within  sixty  days  the  claimant  must  commence  the  construction 
of  the  works  in  which  he  intends  to  divert  the  water,  and  must 
prosecute  the  work  diligently  and  uninterruptedly.  And 
section  1418,  Civil  Code,  provides  that  by  a  compliance  with 
the  rules  contained  in  section  1416,  the  claimant's  right  to  the 
use  of  the  water  relates  back  to  the  time  the  notice  was  posted. 
His  right  to  the  water  depends  upon  his  complying  with  the 


DE  WOLFSKILL  v.  SMITH.  125 

provisions  of  the  law  and  making  an  actual  appropriation  of 
its  use.  The  court  finds  that  the  claimant  did  commence  work 
within  sixty  days  after  posting  the  notice  and  prosecuted  it 
continuously  until  enjoined  therefrom  at  the  instance  of  de- 
fendant Smith  on  December  10,  1902,  after  Smith  had  settled 
upon  the  land,  and  that  Smith  fenced  the  land  and  prevented 
her  from  constructing  the  ditch.  Having  capped  the  wells  and 
enjoined  appellant  from  entering  upon  the  land  to  complete 
the  ditch,  by  means  of  which  she  sought  to  divert  the  water  to 
the  place  of  intended  use,  respondents  are  in  no  position  to 
assert  that  appellant  has  failed  to  prosecute  the  work  with 
diligence  and  become  an  actual  appropriator. 

By  act  of  Congress  passed  July  16,  1866  (14  Stats,  at  Large, 
253),  it  is  provided:  "That  whenever  by  priority  of  posses- 
sion rights  to  the  use  of  water  for  mining,  agricultural,  manu- 
'facturing,  or  other  useful  purposes,  have  vested  and  accrued, 
and  the  same  are  recognized  and  acknowledged  by  the  local 
customs,  laws  and  decisions  of  the  courts,  the  possessors  and 
owners  of  such  vested  rights  shall  be  maintained  and  protected 
•in  the  same,  and  the  right  of  way  for  the  construction  of 
ditches  and  canals  for  the  purposes  aforesaid  is  hereby  ac- 
knowledged and  confirmed."  (U.  S.  Rev.  Stats.,  sec.  2339; 
U.  S.  Comp.  Stats.  1901,  p.  1437.) 

Later  this  act  was  amended  by  a  provision  to  the  effect  that 
all  homesteads  allowed  should  be  subject  to  vested  and  accrued 
water  rights  and  rights  to  ditches  used  in  connection  there- 
with. 

By  posting  the  notice  appellant  from  that  time  became 
vested  with  the  right  to  the  use  of  the  stream  of  water  then 
flowing  from  these  wells,  together  with  the  right  to  construct 
over  and  across  the  land  the  necessary  ditches  to  divert  and 
conduct  the  same  to  the  place  of  intended  use.  Both  Myers 
and  Smith  took  the  property  subject  to  the  rights  of  appellant 
to  the  stream  of  water  then  flowing  thereon,  together  with  the 
right,  without  interference,  to  construct  the  necessary  ditches 
for  its  diversion,  which  rights  accrued  and  became  vested  in 
her  under  the  said  acts  of  Congress  and  the  laws  and  decisions 
of  this  state.  The  language  used  in  Taylor  v.  Abbott,  103  Cal. 
421,  37  Pac.  408,  where  it  is  said  that  the  above-quoted  section 
"does  not  confer  the  right  to  enter  upon  the  lands  in  the 


126  WATER  RIGHTS  AND  IRRIGATION  LAW. 

possession  of  another  for  the  purpose  of  securing  the  water 
therein,  or  of  completing  an  attempted  diversion  of  water," 
is  not  applicable  to  this  case,  for  the  reason  that  in  that  case 
no  sufficient  notice  had  been  posted,  and  therefore  no  right  to 
the  water  had  accrued  or  become  vested  under  the  local  laws 
and  decisions  of  the  courts. 

The  notice  was  posted  in  a  conspicuous  place  at  each  well 
and  the  claim  is  for  fifteen  hundred  inches  of  water  "flowing 
from  and  at  the  wells."  It  appears  that  these  wells  are  in  line 
with  the  bed  of  the  canyon,  and  the  lower  one  about  five  hun- 
dred feet  distant  from  the  one  next  above,  or  middle  one,  and 
that  no  water  flows  from  the  upper  one.  Under  these  facts  we 
regard  the  notice  as  a  sufficient  designation  of  the  point  of 
diversion,  as  well  as  sufficient  in  substance  to  meet  the  require- 
ments of  section  1415,  Civil  Code.  Nor  was  it  necessary,  the 
notices  being  identically  the  same,  to  record  more  than  one 
copy.  The  purpose  of  recording  is  to  furnish  notice  of  claim- 
ant's rights  to  subsequent  settlers  upon  the  land  or  appropria- 
tors  of  the  water,  and  this  object  was  fully  attained  by  record- 
ing one  copy. 

The  northerly  or  upper  well  supplied  no  stream  of  running 
water,  and  hence  affords  no  water  subject  to  appropriation. 
Nor  do  the  facts  entitle  appellant  to  enter  the  land  for  the 
purpose  of  developing  water  by  boring  additional  wells,  but 
she  has  an  accrued  and  vested  right  to  prosecute  her  work 
under  and  in  accordance  with  the  provisions  of  section  1416 
of  the  Civil  Code  in  the  construction  of  the  necessary  ditches 
to  convey  the  stream  of  water  flowing  from  the  two  southerly 
wells  to  the  place  of  intended  use,  and  do  all  things  necessary 
to  complete  the  actual  appropriation  of  the  stream  of  water, 
in  accordance  with  the  notice  posted  on  October  13,  1902. 

The  judgment  is  reversed,  and  the  trial  court  will  render 
a  judgment  for  appellant  in  accordance  with  the  views  herein 
expressed. 


WELLS  v.  MANTES.  127 


Completed   Actual   Appropriation — Subsequent   Appropria- 
tion Under  Code. 

J.  M.  WELLS,  Respondent,  v.  JOHN  MANTES  et  al.,  Appel- 
lants. 

(99  Cal.  583,  34  Pac.  324.) 

GAROUTTE,  J.— This  is  action  to  restrain  appellants  from 
diverting  the  waters  of  a  certain  stream,  and  thereby  de- 
priving plaintiff  of  the  use  thereof.  The  plaintiff,  by  actual 
diversion,  appropriated  two  thousand  five  hundred  inches  of 
the  water  of  the  stream  for  the  purpose  of  irrigation.  Subse- 
quently, defendants,  at  a  point  a  mile  or  more  above  plaintiff's 
place  of  diversion,  posted  notices  in  accordance  with  the  pro- 
visions of  the  Civil  Code,  and  proceeded  to  claim  and  appro- 
priate the  waters  of  the  said  stream  regardless  of  any  rights 
of  plaintiff  to  such  waters  obtained  by  virtue  of  his  actual 
appropriation.  The  only  question  presented  by  this  record  is : 
Can  a  person,  by  the  actual  diversion  and  appropriation  of 
water,  obtain  the  right  to  the  use  thereof  as  against  a  claimant 
who  subsequently  posts  'his  notices  upon  a  stream,  in  accord- 
ance with  section  1415  of  the  Civil  Code,  and  proceeds  there- 
after, as  required  by  the  statute,  to  perfect  his  rights?  We 
have  no  doubt  but  that  an  actual  and  complete  appropriation 
of  the  waters  of  a  running  stream  may  be  made  without  fol- 
lowing the  course  laid  down  in  the  Civil  Code.  In  De 
Necochea  v.  Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198,  which 
was  subsequently  followed  in  Burrows  v.  Burrows,  82  Cal.  564, 
23  Pac.  146,  it  was  decided  that  such  an  actual  appropriation 
was  good  as  against  a  subsequent  pre-emptioner  of  the  land 
upon  which  the  spring  was  situated,  from  which  the  appro- 
priated water  flowed.  Such  was  declared  to  be  the  law  by  vir- 
tue of  the  Amendatory  Act  of  Congress  of  July  9, 1870,  which, 
among  other  things,  provided  that  "all  patents  granted,  or 
pre-emptions  or  homesteads  allowed,  shall  be  subject  to  any 
vested  or  accrued  water  rights,  or  rights  to  ditches  and  reser- 
voirs used  in  connection  with  such  water  rights,  as  may  have 
been  acquired  under  or  recognized  by  the  ninth  section  of  the 
act  of  which  this  act  is  amendatory. ' ' 


128  WATER  RIGHTS  AND  IRRIGATION  LAW. 

It  was  held  that,  by  virtue  of  the  act  of  Congress  quoted, 
defendant  took  his  title  from  the  government  with  a  servi- 
tude resting  upon  the  land.  The  spring  from  which  the 
stream  flowed  was  situated  upon  the  land  pre-empted,  and 
therefore  was  the  property  of  the  defendant  Curtis.  And  in 
contesting  De  Necochea's  right  to  the  use  of  the  water  run- 
ning from  the  spring,  the  pre-emptioner  in  no  sense  could  be 
classed  as  a  mere  trespasser  seeking  to  interfere  with  the  rights 
of  the  party  enjoying  the  actual  possession  of  the  water.  He 
occupied  a  position  much  stronger  than  a  mere  subsequent  ap- 
propriator, for  as  to  such  a  one  it  is  apparent  at  a  glance  he 
would  have  had  no  rights  whatever.  In  order  to  defeat  the 
defendant's  claims  in  that  litigation  it  was  necessary  to  hold 
that  the  prior  appropriator  had  a  right  to  the  use  of  the  waters 
of  the  stream,  by  virtue  of  his  actual  appropriation  and  pos- 
session, beyond  that  which  was  sufficient  to  defeat  a  mere  in- 
truder, for  that  term  in  no  sense  could  be  applied  to  the 
pre-emptioner  Curtis.  If  a  right  to  the  use  of  the  water  of  the 
stream,  merely  sufficient  to  defend  against  a  trespasser,  would 
not  have  been  sufficient  to  defeat  the  pre-emptioner,  it  follows 
necessarily  that  the  pre-emptioner,  being  defeated  in  that  case, 
the  prior  appropriator  was  recognized  as  possessing  vested 
rights  to  the  use  o.f  the  water  by  actual  diversion  and  without 
complying  with  the  provisions  of  the  code.  It  is  substantially 
held  in  that  case  that,  when  the  pre-emptioner  took  his  title, 
he  took  it  with  a  servitude  upon  the  land ;  and  this  servitude 
was  not  created  by  complying  with  the  statute  as  to  the  ap- 
propriation of  water,  but  by  an  actual  diversion  alone.  For 
these  reasons  we  deem  that  case  directly  in  point  upon  the 
question  at  bar. 

As  supporting  the  determination  that  a  vested  right  to  the 
use  of  water  may  be  secured  without  invoking  the  provisions 
of  the  code,  it  must  be  remembered  that  the  congressional  leg- 
islation quoted  was  enacted,  as  is  said  in  Broder  v.  Water  Co., 
101  U.  S.  276,  25  L.  ed.  790,  for  the  purpose  of  recognizing 
pre-existing  rights  to  the  use  of  water,  rather  than  establishing 
new  rights. 

Again,  we  cannot  bring  ourselves  to  think  that  a  mere  sub- 
sequent appropriator  under  the  code  occupies  a  better  posi- 
tion than  the  pre-emptioner  whose  situation  we  have  just  been 


.WELLS  v.  MANTES.  129 

discussing,  and  whose  rights  to  the  waters  of  the  stream  we 
have  held  to  be  secondary  to  those  of  the  prior  appropriator. 
To  say  that  the  pre-emptioner  has  no  rights  against  the  prior 
appropriator,  but  that  the  subsequent  appropriator  by  posting 
notices,  etc.,  has  a  superior  right  to  the  prior  appropriator,  is 
inconsistent  in  the  extreme.  Such  a  practice  would  result  in 
an  unjust  discrimination,  and  has  no  sound  support  in  the  law. 
If  the  prior  appropriator  has  sufficient  rights  in  the  water  to 
defeat  the  pre-emptioner,  and  we  have  decided  such  to  be  the 
case,  he  has  sufficient  right  to  defeat  the  subsequent  appro- 
priator under  the  code.  , 

Section  1418  of  the  Civil  Code  reads:  "By  a  compliance  with 
the  above  rules  the  claimant's  right  to  the  use  of  the  water 
relates  back  to  the  time  the  notice  was  posted";  and  we  think 
the  scope  and  purpose  of  all  the  provisions  of  the  chapter  upon 
water  rights  was  to  establish  a  procedure  for  the  claimants  of 
the  right  to  the  use  of  water,  whereby  a  certain  definite  time 
might  be  established  as  the  date  at  which  their  title  should 
accrue.  In  this  connection  we  quote  again  from  De  Necochea 
v.  Curtis,  supra,  wherein  the  court,  speaking  of  this  question, 
.said:  "In  this  provision  we  begin  to  see  the  purpose  and  ob- 
ject of  the  legislature  which,  in  our  opinion,  was  merely  to  de- 
fine with  precision  the  conditions  upon  which  the  appropriator 
of  water  could  have  the  advantage  of  the  familiar  doctrine  of 
relation  upon  which  it  had  always  been  held  before  the  statute, 
that  one  who  gave  sufficient  notice  of  his  intention  to  appro- 
priate, and  followed  up  his  notice  by  diligent  prosecution  of 
the  work,  was  upon  its  completion  to  be  deemed  an  appropri- 
ator from  the  date  of  his  notice,  and  was,  therefore,  prior  in 
time  and  stronger  in  right  than  an  intervening  appropriator, 
notwithstanding  his  diversion  of  the  water  might  be  first  com- 
pleted. "  No  possible  injury  can  result  from  this  construc- 
tion of  the  statute.  A  party  contemplating  an  appropriation 
of  water  from  a  stream  is  furnished  with  more  definite  in- 
formation for  his  guidance  as  to  the  character  and  extent  of 
the  appropriation  by  an  actual  diversion  than  could  possibly 
be  obtained  from  the  notices  provided  by  the  statute. 

To  defeat  the  respondent's  rights,  appellants  invoke  section 
1419  of  the  Civil  Code,  which  reads:  "A  failure  to  comply 
9 


130  WATER  EIGHTS  AND  IRRIGATION  LAW. 

with  such  rules  deprives  the  claimants  of  the  right  to  the  use 
of  the  water  as  against  a  subsequent  claimant  who  complies 
therewith."  We  think  this  provision  does  not  refer  to  an 
appropriator  by  actual  diversion,  but  only  to  claimants  seek- 
ing the  right  to  the  use  of  water  under  the  provisions  of  this 
chapter  of  the  code.  This  is  made  apparent  by  an  examination 
of  the  preceding  sections.  Section  1415  provides:  "A  person 
desiring  to  appropriate  water  must  post  a  notice  in  writing,  in 
a  conspicuous  place  at  the  point  of  intended  diversion,  stating 
therein  that  he  claims  the  water  there  flowing  to  the  extent, ' ' 
etc.  Section  1416  reads:  "Within  sixty  days  after  the  notice 
is  posted  the  claimant  must  commence  the  excavation  or  con- 
struction of  the  works, ' '  etc.  Section  1418  reads :  ' '  By  a  com- 
pliance with  the  above  rules  the  claimant's  right  to  the  use  of 
the  water  relates  back  to  the  time  the  notice  was  posted. ' '  It 
thus  becomes  apparent  from  these  provisions  that  the  word 
"claimants,"  as  used  in  section  1419,  refers  to  a  party  posting 
and  recording  notices  required  by  the  provisions  of  section 
1415,  and  does  not  apply  to  an  appropriator  by  actual  diver- 
sion. 

For  the  foregoing  reasons,  it  is  ordered  that  the  judgment 
and  order  be  affirmed. 


Subsequent  Appropriator  Entitled  to  Surplus — No  Distinc- 
tion Between  Uses. 

ORTMAN  et  al.  v.  DIXON  et  al. 

(13  Cal.  33.) 

BALDWIN,  J.,  delivered  the  opinion  of  the  court — 
TERRY,  C.  J.,  concurring. 

Bill  filed  for  an  injunction  against  the  defendants,  to  re- 
strain them  from  turning  the  waters  of  a  stream,  called  Mill 
creek,  into  a  ditch  constructed  by  them,  known  as  Ditch  No. 
3,  as  marked  on  the  map  accompanying  the  pleadings. 

Two  main  questions  arise  on  the  record:  1.  Can  a  water 
right  be  conveyed  by  a  bill  of  sale  not  under  seal?  And  2. 
Has  the  prior  locator  of  a  water  privilege  the  right  to  change 


ORTMAN  v.  DIXON.  131 

the  point  of  diversion  from  the  main  stream  under  the  facts 
hereafter  stated? 

First.  We  do  not  consider  that  it  is  at  all  necessary  to  hold 
that  a  water  right,  so  as  to  pass  the  legal  title  from  grantor  to 
grantee  (the  premises  being  in  adverse  possession),  must  be 
conveyed  by  deed ;  for  here  the  right  of  the  water  was  appur- 
tenant to,  or  connected  with,  a  ditch.  Any  executed  contract 
which  passed  the  equitable  right  to  the  ditch,  and  the  use  of 
the  water  as  the  property  of  the  grantee,  is  enough  to  assure 
to  him  the  rights  for  which  he  stipulated  as  against  an  adverse 
claimant.  Possession  itself  would  be  enough,  and  surely  that 
possession  is  no  worse  for  being  associated  with  an  equitable 
right.  The  difference  between  instruments  sealed  and  un- 
sealed is  at  least,  at  this  day,  a  mere  arbitrary  and  unmean- 
ing distinction  made  by  technical  law,  unsustained  by  reason ; 
and,  though  the  courts  may  have  no  right  to  abrogate  what 
the  law  has  established,  even  when  the  rule  be  senseless,  yet 
we  will  not  go  out  of  our  way  to  give  effect  to  such  distinc- 
tions, when  the  law  does  not  clearly  so  require.  But  this  dis- 
tinction between  sealed  and  unsealed  papers  has  no  force,  as 
a  general  rule,  except  in  a  particular  class  of  cases  to  which 
this  does  not  belong.  Where  an  instrument  touching  title  to 
the  realty  is  not  under  seal,  the  strict  legal  title,  at  common 
law,  was  not  conveyed;  but  the  equitable  title  might  be  con- 
veyed by  an  instrument  not  sealed,  if  otherwise  sufficient ;  and 
this  equitable  title,  if  accompanied  by  possession,  is  sufficient, 
under  our  system,  to  give  a  right  of  possession.  Indeed,  we 
do  not  see,  under  our  system  of  practice,  which  recognizes  none 
of  the  old  forms  of  action,  but  which  was  designed  to  afford  a 
plain,  unembarrassed  remedy  upon  the  particular  facts  of  each 
case,  why  an  action  cannot  be  maintained  upon  any  title,  legal 
or  equitable ;  or  upon  an  instrument,  sealed  or  unsealed,  which 
entitled  the  plaintiff  to  the  possession  of  the  property  in  dis- 
pute as  against  the  defendant.  But  this  is  a  proceeding  in 
equity,  and  in  that  form  an  equitable  title  is  as  good  as  a  legal 
title,  as  a  matter  for  defense  or  recovery. 

Second.  The  second  question  is  of  more  difficulty;  it  in- 
volves the  necessity  of  an  examination  of  the  particular  facts 
in  connection  with  which  it  is  made.  In  the  fall  of  1851.  the 
first  ditch  was  constructed,  designated  on  the  map  filed  as 


132  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Ditch  No.  1,  for  the  purpose  of  conveying  the  water  flowing  in 
Mill  creek  to  Atchinson's  bar.  Ortman  first  commenced  the 
building  of  the  ditch,  and  constructed  it  only  a  few  rods.  It 
was  afterward  extended  by  the  miners  in  that  locality  to  the 
claims  on  Atchinson's  bar.  It  appears,  when  first  located,  to 
have  been  used  as  common  property.  No  charge  was  ever 
made  for  the  waters  it  conveyed,  and  the  miners  indiscrimi- 
nately repaired  the  ditch  and  took  the  water  as  they  required 
it  to  wash  their  dirt.  It  was  not  reputed  or  known  to  be  the  ex- 
clusive property  of  any  particular  person,  though,  from  the 
testimony,  Ortman  was  the  first  to  commence  its  excavation. 
Ortman  and  all  others  have  long  since  abandoned  the  use  of 
the  first  ditch. 

In  January,  1852,  the  defendants  took  up  the  waters  of  the 
creek  for  milling  purposes,  and  erected  a  sawmill,  which  they 
have  owned  ever  since,  and  used  the  same  from  time  to  time. 
In  1853,  Louis  Duhamel,  with  two  others,  commenced  the  con- 
struction of  a  second  ditch,  marked  Ditch  No.  2  on  the  map, 
at  a  point  above  defendants'  mill-pond,  and  higher  up  the 
stream,  by  means  of  which  they  diverted  water  of  the  creek 
to  the  same  mining  claims  as  the  first  ditch  did.  Duhamel  & 
Co.  used  the  water  which  their  ditch  afforded  at  such  times 
as  the  defendants  were  not  engaged  in  running  their  mill,  but 
desisted,  whenever  the  defendants  had  use  for  the  water.  The 
evidence  shows  that  Duhamel  &  Co.  recognized  and  acquiesced 
in  the  prior  rights  of  defendants  to  the  water  of  this  creek. 
Some  time  in  the  year  1853,  Duhamel  &  Co.  sold  the  ditch  to 
the  plaintiffs,  by  which  they  acquired  all  the  rights  and  privi- 
leges possessed  by  Duhamel  &  Co.,  and  have  since  that  time 
used  the  water  for  mining.  The  defendants,  in  the  fall  of 
1856,  constructed  a  third  ditch,  still  higher  up  the  stream,  and 
above  the  last-mentioned  Ditch  No.  2  of  the  plaintiff,  through 
which  they  diverted  all  the  water  ordinarily  flowing  in  the 
creek,  and  conveyed  it  to  near  the  same  mining  claims  as  the 
other  two  ditches,  which  water  they  disposed  of  to  the  miners. 

We  presume  that  it  is  not  to  be  doubted  that  the  defend- 
ants, having  first  appropriated  the  water  for  their  mill  pur- 
poses, are  entitled  to  it  to  the  extent  appropriated,  and  for 
those  purposes  to  the  exclusion  of  any  subsequent  appropria- 
tion of  it  for  the  same  or  any  other  use.  We  hold  the  absolute 


ORTMAN  v.  DIXON.  133 

property  in  such  cases  to  pass  by  appropriation  as  it  would 
pass  by  grant. 

But  another  and  different  question  arises,  and  that  is,  To 
what  extent  does  this  power  or  right  go  ?  The  measure  of  the 
right,  as  to  extent,  follows  the  nature  of  the  appropriation,  or 
the  uses  for  which  it  is  taken.  The  intent  to  take  and  appro- 
priate, and  the  outward  act,  go  together.  If  we  concede  that 
a  man  has  right  by  mere  priority  to  take  as  much  water  from 
a  running  stream  as  he  chooses,  to  be  applied  to  such  purposes 
as  he  pleases,  the  question  still  arises,  What  did  he  choose  to 
take?  And  this  depends  upon  the  general  and  particular 
uses  he  makes  of  it.  If,  for  instance,  a  man  takes  up  water 
to  irrigate  his  meadow  at  certain  seasons,  the  act  of  appro- 
priation, the  means  used  to  carry  out  the  purpose,  and  the  use 
made  of  the  water,  would  qualify  his  right  of  appropriation 
to  a  taking  for  a  specific  purpose,  and  limit  the  quantity  to 
that  purpose,  or  to  so  much  as  necessary  for  it.  So,  if  A  erects 
a  mill  on  a  running  stream,  this  shows  an  appropriation  of  the 
water  for  the  mill;  but,  if  he  suffers  a  portion  of  the  water, 
or  the  body  of  it,  after  running  the  mill,  to  go  on  down  its 
accustomed  course,  we  do  not  see  why  persons  below  may  not 
as  well  appropriate  this  residuum  as  he  could  appropriate  the 
first  use.  The  truth  is,  he  only  appropriates  so  much  as  he 
needs  for  the  given  purpose.  It  may  be  true,  as  the  counsel 
has  ingeniously  argued,  that  he  may  change  the  use,  and  even 
the  place  of  using ;  but  this  concession  does  not  help  the  argu- 
ment, for  the  question  is  not  how  he  may  use  his  own,  but 
what  is  his  own. 

The  principle  is  not  materially  different  when  applied  to  the 
fact  that  the  ditch  of  defendant  was  built  above  plaintiff's 
mill,  and  the  water  diverted  so  as  to  be  carried  out  of  the  old 
channel  or  course;  for,  upon  the  ground  suggested,  plaintiff 
was  only  entitled  to  the  water  for  the  purposes  of  the  mill. 

y  He  was  entitled  to  all,  whenever  all  was  necessary  for  the  mill ; 
but  whenever  the  mill  did  not  need  or  could  not  use  it  for  its 
operations,  the  defendant  could  use  it  for  his  purposes.  It  is 
not  a  question  of  priority,  as  to  two  classes  of  appropriators ; 
for  we  cannot  draw  any  distinction  between  the  mill  owner 
and  the  miner.  But  it  is  a  question  between  claimants  of  the 

•  same  article — each  claiming  a  part.     There  is  no  real  conflict 


134  WATER  EIGHTS  AND  IRRIGATION  LAW. 

of  title — the  latter  only  claiming  what  is  left  by  the  former, 
and  what  the  former  has  not  taken.  The  mistake  of  the  ar- 
gument of  appellant's  counsel  is  in  assuming  that  the  mill 
owner  had  appropriated  all  of  this  water,  and,  therefore,  could 
use  all  for  any  other  purpose.  But  the  finding  is,  and  we 
assume  the  proof,  too,  that  he  only  appropriated  so  much  .as 
was  needed  for  running  his  mill.  It  is  as  if  the  paramount 
proprietor  had  made  him  a  grant  of  so  much  water  as  was  so 
needed.  When  the  respondent's  predecessor  located  his  ditch, 
this  was  the  beginning  of  his  right.  The  appellant  could  not 
impair  this  right. 

It  might  be  argued  with  great  force  that  the  mill  owner  was 
not  entitled  by  erecting  the  mill  and  dam  to  the  water  in 
specie  and  as  a  commodity  to  be  taken  out  and  sold;  that  he 
is  only  entitled  to  its  use  as  a  motive  power;  that  it  would 
lead  to  injurious  consequences  to  hold  that  a  man  erecting  a 
mill  and  dam  on  a  large  stream  of  running  water  could  use  it 
as  long  as  he  chose  and  then  divert  it  from  ditches  below ;  that 
the  right  to  water  comes  from  the  appropriation,  and  that 
appropriation  is  taking  with  the  intent  to  apply  to  the  uses 
of  the  person  taking ;  and  there  may  be  as  well  an  appropria- 
tion of  a  limited  quantity,  or  for  a  limited  purpose — an  ap- 
propriation of  a  mere  use  as  an  appropriation  of  the  water  as 
property  for  sale.  But  it  is  not  necessary  to  go  to  this  length 
for  any  purpose  of  this  decision.  It  is  enough  to  hold  that 
this  appropriation,  according  to  the  finding  of  facts,  was  not 
an  appropriation  of  all  this  water  as  the  property  of  the  ap- 
pellant; but  only  an  appropriation  of  so  much  as  necessary 
for  the  mill;  and  that  the  appellant,  after  the  claim  to  this 
residuum  had  attached  by  the  plaintiff's  appropriation,  could 
not  enlarge  his  right  at  the  expense  of  the  respondent's  rights 
already  vested. 

We  take  the  facts  as  they  are  found  by  the  court  below.  It 
is  admitted  by  the  counsel  that  the  proofs  are  conflicting,  and 
we  do  not  usually  interfere  in  such  instances.. 

Judgment  affirmed. 


LOW  V.  SCHAFFEB.  135 


Adverse  Possession  —  Appropriator  Also  RipariaJi  Proprietor. 


LOW  v.  SCHAFFER  et 

(24  Or.  239,  33  Pac.  678.) 

Suit  by  Leonard  Low  against  Logan  Schaffer  and  Amanda 
L.  Schaffer  to  enjoin  defendants  from  diverting  the  water  of 
a  certain  creek.  Decree  for  defendants,  and  plaintiff  appeals. 
Reversed. 

The  other  facts  fully  appear  in  the  following  statement  by 
MOORE,  J.  : 

This  is  a  suit  to  enjoin  the  defendants  from  diverting  the 
waters  of  Hill  creek,  in  Baker  county,  Oregon.  It  appears 
that  the  waters  of  the  creek  flow  through  defendants'  land, 
and  thence  in  a  northeasterly  direction  through  the  plaintiff's 
adjoining  land;  that  about  one-half  of  the  volume  of  these 
waters  is  supplied  from  springs  on  defendants'  land;  that 
about  1866  plaintiff  settled  upon  a  tract  of  government  land, 
and,  after  it  had  been  surveyed  and  platted,  he  obtained  the 
United  States  patent  therefor;  that  at  the  time  of  his  settle- 
ment he  dug  three  ditches  from  said  creek,  and  diverted  and 
used  all  the  water  thereof  to  irrigate  his  arid  land,  and  has 
ever  since  continued  to  so  use  it,  except  when  diverted  by 
others;  that  about  1876  one  Martin  Hill  settled  upon  a  tract 
south  of  and  adjoining  the  plaintiff's  said  land,  built  a  house 
and  some  fencing  thereon,  dug  ditches  from  said  creek,  and 
diverted  and  used  the  water  to  irrigate  the  cultivated  portion 
of  it,  and  continued  to  use  the  water  for  that  purpose  until 
about  1880,  when  he  transferred  his  possessory  right  and  im- 
provements upon  said  land  to  plaintiff,  who  continued  to  irri- 
gate it  by  the  water  of  said  creek  until  about  1884,  when,  by  a 
bill  of  sale,  he  transferred  the  possessory  right  and  improve- 
ments on  said  land  acquired  from  Hill  to  one  Thomas  Huff- 
man ;  that  Huffman  went  into  possession  of  said  premises, 
diverted  and  used  the  water  of  said  creek,  and  irrigated  the 
land  therewith  until  about  1885,  when  one  Oscar  Hindman 
contested  his  right  thereto  before  the  local  land  officers,  and  as 
a  result  of  the  contest  secured  the  land,  and  obtained  a  patent 
from  the  United  States  therefor;  that  Hindman  diverted  and 


136  WATER  RIGHTS  AND  IRRIGATION  LAW. 

used  the  waters  of  said  creek,  and  also  diverted  and  used  the 
water  from  three  springs  on  said  tract,  which  were  tributaries 
of  said  creek,  to  irrigate  his  land,  and  in  May,  1890,  and  after 
he  had  made  final  proof  in  support  of  his  claim,  he  conveyed 
it  to  the  defendants,  who  went  into  possession,  and  have  since 
that  time  diverted  and  used  the  water  appropriated  by  Hind- 
man  to  irrigate  their  lands ;  that  the  lands  of  both  plaintiff  and 
defendants  are  dry  and  arid,  and  without  water  are  nearly 
valueless,  but  by  irrigation  are  made  to  produce  excellent 
crops;  that  another  stream,  known  as  "Alder  creek,"  flows 
through  plaintiff's  land,  and  serves  to  irrigate  the  whole  tract 
except  about  ten  to  fifteen  acres,  which  has  been  irrigated 
from  the  water  of  Hill  creek.  The  plaintiff  alleges  a  prior 
appropriation  of  the  water  of  Hill  creek ;  that  he  is  a  riparian 
proprietor  on  said  stream ;  and  that  the  water  thereof  is  neces- 
sary for  his  use.  The  defendants,  after  denying  the  allega- 
tions of  the  complaint,  for  a  separate  defense  allege  an  ad- 
verse user  of  the  water  of  said  creek  by  themselves  and  their 
grantors  and  predecessors  since  1876 ;  and  for  a  further  sepa- 
rate defense  allege  that  plaintiff  was  one  of  their  grantors  and 
predecessors  in  interest,  and  that  such  water  was  not  necessary 
for  his  use,  but  that  he  desired  it  for  speculation.  The  reply 
denied  the  allegations  of  new  matter  in  the  answer,  and,  the 
issues  having  been  completed,  the  testimony  was  taken  by  a 
referee,  and  the  court  found  that  the  equities  were  with  the 
defendants,  and  decreed  to  them  twenty  inches  of  the  water 
of  said  creek,  from  which-  decree  the  plaintiff  appeals. 

D.  D.  Williams,  for  Appellant. 
H.  E.  Courtney,  for  Respondents. 

MOORE,  J.  (after  stating  the  facts). — The  evidence  con- 
clusively shows  that  plaintiff  was  the  prior  appropriator  of 
the  water  of  said  creek,  and  that  he  had  diverted  and  used 
it  for  more  than  ten  years  prior  to  Hill 's  diversion ;  and,  as 
a  consequence,  he  is  entitled  to  the  use  thereof,  unless  he  has 
lost  it  by  an  adverse  user  or  by  abandonment.  To  constitute 
an  adverse  user  of  more  than  ten  years  the  defendants  must 
necessarily  tack  the  use  of  Huffman  to  that  of  Hindman,  their 
grantor.  Continuity  of  use  is  an  essential  element  of  an  ad- 


LOW  V.   SCHAFFER.  137 

verse  title.  When  several  persons  enter  upon  land  in  suc- 
cession, the  several  possessions  cannot  be  tacked  so  as  to  make 
a  continuity  of  possession,  unless  there  is  a  privity  of  estate 
or  the  several  titles  are  connected.  Whenever  one  quits  the 
possession,  the  seisin  of  the  true  owner  is  restored,  and  an  en- 
try afterward  by  another,  wrongfully,  constitutes  a  new  dis- 
seisin. ...  If  there  has  been  any  break  or  interruption  in  the 
use,  the  several  uses  cannot  be  tacked  so  as  to  make  it  con- 
tinuous. If  Hill's  use  in  1876  had  been  adverse  to  plaintiff's 
claim,  when  in  1880  he  transferred  his  possessory  right  and  im- 
provements to  the  plaintiff  he  thereby  restored  plaintiff  to 
his  original  claim.  Admitting  that  plaintiff  transferred  his 
possessory  right  to  Huffman  more  than  ten  years  prior  to 
the  commencement  of  the  suit,  Hindman  could  not  tack  his 
possession  to  that  of  Huffman,  since  there  was  no  privity  of 
interest  or  of  estate  between  them;  and  Hindman  did  not 
take  the  title  from  Huffman  as  a  tenant,  heir,  or  vendee, 
but  by  an  independent  title  from  the  government,  and  hence 
the  defense  of  adverse  possession  must  fail. 

A  prior  appropriator  of  the  water  of  a  stream,  who  has  a 
possessory  right  to  the  real  estate  benefited  thereby,  -may,  by 
a  parol  transfer,  assign  his  interest  in  the  land  as  well  as  his 
right  to  the  use  of  water  appurtenant  thereto.  The  water 
appropriated  for  irrigation  is  as  much  a  part  of  the  improve- 
ments as  his  buildings  and  fences,  and  the  transfer  of  the 
possessory  right  to  the  land  carries  with  it  the  water  so  ap- 
propriated, unless  expressly  reserved.  (Hindman  v.  Rizor, 
21  Or.  113,  27  Pac.  13.)  The  verbal  sale  and  transfer  of 
his  water  right  by  a  prior  appropriator  operates  ipso  facto 
as  an  abandonment  thereof  (Smith  v.  O'Hara,  43  Cal.  371), 
and  he  could  not  thereafter  reassert  his  original  right  to  the 
same  against  another  appropriator.  (Pom.  Rip.  Rights,  sec. 
88.)  The  plaintiff  could  not  be  deprived  of  his  use  unless 
there  was  a  manifest  intention  upon  his  part  to  abandon  it, 
and  this  intention  must  be  determined  from  his  declaration 
and  acts  in  relation  thereto.  (Dodge  v.  Harden,  1  Or.  460.) 
It  appears  that  Hill  had  diverted  and  used  the  water  from 
Hill  creek  to  irrigate  his  crops,  and  that  plaintiff,  while  he 
claimed  the  possessory  right  thereto,  had  also  used  the  water 
for  that  purpose.  It  appears  that  the  bill  of  sale  evidencing 


138  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  transfer  of  the  possessory  right  from  plaintiff  to  Huffman 
was  left  with  Huffman's  attorney,  and  was  not  offered  in 
evidence.  While  plaintiff  occupied  and  cultivated  the  land 
now  owned  by  the  defendants,  he  never  used  the  water  from 
Hill  creek  to  irrigate  the  crops  growing  thereon,  except  in 
the  early  season,  when  there  was  an  abundance  of  water  in 
the  creek;  thus  showing  that  he  considered  and  treated  this 
tract  as  a  servient  estate  to  his  own  lying  below,  and  that 
Huffman,  while  he  occupied  it,  never  used  water  thereon  ex- 
cept by  the  plaintiff's  permission,  and  then  only  when  it  was 
abundant.  The  plaintiff  testifies  that  he  never  sold  or  as- 
signed to  Huffman  the  right  to  use  any  water  from  the  creek, 
and  in  this  he  is  corroborated  by  the  testimony  of  Huffman, 
who  swears  that  he  never  purchased  any  of  the  water  rights 
thereon,  or  used  any  water  except  by  plaintiff's  permission. 
This  evidence  rebuts  the  presumption  that  plaintiff  abandoned 
the  use  of  the  water.  There  could  be  no  such  abandonment 
without  an  intention  on  plaintiff's  part  to  that  effect,  and 
his  intent  is  to  be  gathered  from  his  acts.  (Mallett  v.  Uncle 
Sam  etc.  Min,  Co.,  1  Nev.  188,  90  Am.  Dec.  484.)  .  .  . 

The  law  regards  the  appropriation  which  is  first  in  time 
to  be  prior  in  right,  and  that  such  appropriation  constitutes 
a  vested  right,  which  the  courts  will  protect  and  enforce. 
When  the  waters  of  a  stream  have  been  appropriated  for  a 
beneficial  use,  it  is  an  appropriation  of  all  the  tributaries 
thereof  above  the  point  of  original  diversion.  (Malad  etc. 
Irr.  Co.  v.  Campbell,  2  Idaho,  411,  18  Pac.  52.)  If  the  water 
from  tributaries  could  be  diverted  it  would  destroy  or  impair 
the  original  appropriation.  (Strickler  v.  City  of  Colorado 
Springs,  16  Colo.  61,  25  Am.  St.  Rep.  245,  26  Pac.  313 ;  Strait 
v.  Brown,  16  Nev.  317,  40  Am.  Rep.  497.)  The  testimony  of 
the  plaintiff  and  his  witnesses  shows  that  the  springs  upon 
defendants'  lands  discharged  their  waters  into  Hill  creek  by 
well-defined  natural  channels,  while  the  defendants  and  their 
witnesses  testify  that  there  are  no  natural  channels  there- 
from, but  that  the  water  percolates  through  the  soil,  and  ulti- 
mately reaches  the  creek.  The  referee  and  court,  however, 
have  found  that  these  springs  are  tributaries  to  said  creek, 
and  flow  in  well-defined  channels,  and  that  the  diversion  of 


LOW  V.  SCHAFFER.  139 

the  waters  of  said  springs  deprives  plaintiff  of  the  use  thereof, 
to  which  he  is  entitled  by  reason  of  his  prior  appropriation. 

The  defendants  claim  that  when  they  bought  their  land 
the  water  was  being  diverted  from  the  creek  and  springs  and 
flowing  in  the  ditches  upon  the  land,  and  in  use  for  purposes 
of  irrigation,  by  their  grantor.  The  evidence  shows  that  be- 
fore they  purchased  the  property  they  examined  it,  and  would 
not  have  bought  it  but  for  the  water  rights  supposed  to  be 
appurtenant  to  it.  The  record  also  shows  that  they  accepted 
a  quitclaim  deed  from  their  grantor;  that  the  plaintiff's 
ditches  were  constructed  on  their  land,  and  were  diverting 
water  from  the  creek;  and  hence  it  cannot  be  said  that  they 
were  innocent  purchasers  for  a  valuable  consideration  with- 
out knowledge  or  notice  (Baker  v.  Woodward,  12  Or.  3,  6  Pac. 
173),  and  defendants  must  therefore  be  presumed  to  have 
purchased  with  knowledge  of  plaintiff's  rights  in  the  prem- 
ises. (Coffman  v.  Bobbins,  8  Or.  278.) 

Plaintiff  contends  that  because  he  is  a  riparian  proprietor 
of  Hill  creek,  and  made  a  prior  appropriation  of  its  waters, 
he  is  thereby  entitled  to  the  flow  of  water  in  the  stream  in 
excess  of  his  appropriation;  that  as  a  prior  appropriator  he 
can  divert  the  quantity  necessary  for  his  use,  and  then  claim 
the  right  as  a  riparian  proprietor  to  have  the  surplus  water 
flow  in  the  channel,  notwithstanding  the  fact  that  defendants 
are  riparian  proprietors  above  him.  Each  riparian  proprie- 
tor has  the  right  to  the  ordinary  use  of  the  water  flowing  past 
his  land  for  the  purpose  of  supplying  his  natural  wants, 
even  if  it  take  all  the  wrater  of  the  stream  to  supply  them. 
He  also  has  the  right  to  use  a  reasonable  quantity  for  irrigat- 
ing his  land,  if  there  be  sufficient  to  supply  the  natural  wants 
of  the  different  proprietors.  A  diversion  of  water  for  irriga- 
tion is  not  an  ordinary  use,  and  can  only  be  exercised  reason- 
ably, and  with  proper  regard  to  the  rights  of  the  other  pro- 
prietors to  apply  the  water  to  the  same  purposes.  .  .  .  Prior 
appropriation,  under  the  doctrine  of  the  Pacific  Coast  states, 
is  a  paramount  right,  and  the  rule  stated  above  must  be  held 
to  apply  only  after  such  appropriation  for  natural  wants 
has  been  made,  when  the  riparian  proprietor  would  be  entitled 
to  a  reasonable  use  of  the  water  for  irrigation.  It  should  be 


140  WATER  RIGHTS  AND  IRRIGATION  LAW. 

presumed  that  the  prior  appropriator,  when  he  makes  his 
appropriation,  has  taken  enough  water  to  supply  his  natural 
wants  as  well  as  his  beneficial  use.  If  his  natural  wants 
are  supplied,  and  he  has  sufficient  water  for  his  beneficial 
use,  he  ought  not  to  complain  because  others  above  divert 
the  water.  His  right  of  action  is  based  upon  his  injury, 
and,  if  his  wants  are  all  supplied,  he  cannot  be  injured. 
What  constitutes  a  reasonable  use  depends  upon  a  number  of 
circumstances, — upon  the  subject  matter  of  the  use  itself,  the 
size  of  the  stream,  the  velocity  of  the  current,  the  nature  of 
the  banks,  the  character  of  the  soil,  and  a  variety  of  other 
facts.  (Pom.  Rip.  Rights,  sec.  125.)  To  hold  that,  after  the 
needs  of  a  prior  appropriator  had  been  supplied,  he,  as  a 
riparian  proprietor,  was  entitled  to  the  flow  of  the  excess  be- 
yond his  appropriation  in  the  channel  of  the  stream,  would 
be  to  deny  all  subsequent  appropriations.  Such  a  rule  would 
destroy  the  very  object  for  which  the  theory  of  irrigation  was 
established,  and  would  give  the  prior  appropriator  the  use  of 
all  the  water  of  a  stream,  without  regard  to  its  size  or  ca- 
pacity. Plaintiff,  by  reason  of  his  prior  appropriation,  was 
entitled  to  the  amount  of  water  originally  appropriated,  and, 
had  he  then  taken  all  the  water  from  the  creek  his  rights 
would  be  respected  and  maintained.  He  is  entitled  to  have 
the  water  flow  in  the  channel  at  the  head  of  his  ditches  to 
the  extent  of  his  appropriation,  and  when  the  defendants 
and  their  grantors  acquired  this  land  they  took  the  same  sub- 
ject to  such  prior  appropriation.  (Kaler  v.  Campbell,  13 
Or.  596,  11  Pac.  301.)  The  plaintiff's  rights  are  to  be  meas- 
ured by  his  appropriation,  and  the  defendants,  being  ripa- 
rian proprietors,  are  entitled,  after  such  appropriation,  to  a 
reasonable  use  of  the  water.  It  appears  that  there  are  about 
ten  acres  of  plaintiff's  land  which  cannot  be  irrigated  from 
the  waters  of  Alder  creek,  and  must  be  irrigated,  if  at  all, 
from  the  waters  of  Hill  creek,  and  hence  he  is  entitled  to  a 
sufficient  quantity  from  that  creek  for  this  purpose.  The 
evidence  shows  that  from  one-half  inch  to  three  inches  is  a 
sufficient  quantity  to  properly  irrigate  one  acre  of  land,  and 
that  in  all  probability  plaintiff's  whole  tract  can  be  irrigated 
from  Alder  creek,  except  about  ten  acres,  and  that  one  inch 
per  acre  is  sufficient  for  that  purpose,  and  that  this  quantity 


KENDALL  v.  JOYCE.  141 

is  the  measure  of  his  right.  The  decree  of  the  court  below 
must  therefore  be  reversed,  and  one  entered  here  giving  plain- 
tiff ten  inches  of  the  water  of  Hill  creek  at  his  point  of  diver- 
sion, and  perpetually  enjoining  the  defendants  from  diverting 
any  of  the  portion  thus  awarded  the  plaintiff. 


Possessory  Right  to  Land — Right  to  Appropriate. 
KENDALL  et  ux.  v.  JOYCE  et  aL 

(48  Wash.  489,  93  Pac.  1091.) 

RUDKIN,  J. — This  was  a  controversy  between  two  land 
owners  over  the  right  to  use  the  waters  of  Johnson  creek,  a 
small  stream  flowing  into  the  Okanogan  river,  in  Okanogan 
county,  for  irrigation  purposes.  The  rights  of  the  respective 
parties  are  predicated  upon  the  following  facts:  In  the  year 
1895  the  plaintiff,  John  Kendall,  a  citizen  of  the  United  States, 
above  the  age  of  twenty-one  years,  settled  upon  lots  3,  4,  and 
5,  and  the  southwest  quarter  of  the  southeast  quarter  of  sec- 
tion 25,  and  lot  1  and  the  northwest  quarter  of  the  northeast 
quarter  of  section  36,  township  35  north,  range  36  east,  Wil- 
lamette meridian,  under  the  homestead  laws  of  the  United 
States.  The  lands  embraced  within  the  settlement  were  at 
that  time  unsurveyed  public  lands  of  the  United  States. 
Kendall  continued  to  occupy  and  cultivate  his  claim  from 
date  of  settlement  until  September  11,  1903,  at  which  time 
he  received  a  homestead  patent  therefor.  Commencing  with 
the  year  1895  he  diverted  the  waters  of  Johnson  creek  for  the 
purpose  of  irrigating  his  orchard  and  meadow  lands  and  for 
stock  and  domestic  purposes.  He  increased  the  amount  of 
his  cultivated  land  from  year  to  year  until  1905,  when  he  had 
fifty-five  or  sixty  acres  under  irrigation  and  cultivation.  The 
testimony  showed  that  he  proceeded  in  good  faith  and  with  rea- 
sonable diligence  in  bringing  his  land  under  cultivation  and 
in  applying  the  waters  diverted  to  beneficial  uses.  In  the  year 
1887  one  Philip  Perkins  settled  upon  the  lands  now  owned  by 
the  defendants.  On  the  9th  day  of  October  of  that  year,  Per- 


142  WATER  RIGHTS  AND  IRRIGATION  LAW. 

kins  filed  a  notice  of  claim  of  water  right  with  the  county  au- 
ditor of  Okanogan  county,  claiming  five  hundred  inches  of 
water  from  Johnson  creek  at  a  certain  point,  and  an  additional 
five  hundred  inches  at  a  certain  other  point.  He  continued  to 
occupy  the  claim  until  about  the  year  1889,  when  he  was  suc- 
ceeded by  one  Warren  Perkins.  The  latter  occupied  the  claim 
until  1897,  when  he  was  succeeded  by  William  Maretta,  and 
Maretta  in  turn  was  succeeded  by  the  defendant  Joyce  in  the 
year  1899.  Joyce  has  since  derived  title  to  the  original  Per- 
kins claim  in  part  under  the  homestead  law  and  in  part  by 
scripping.  Prior  to  the  year  1897  not  to  exceed  five  or  six 
acres  of  the  Joyce  lands  were  irrigated  or  cultivated.  Under 
these  facts  the  court  below  awarded  to  the  defendants  a  prior 
right  to  use  the  waters  of  the  creek  to  the  extent  of  seven 
miner's  inches,  measured  under  a  four-inch  pressure,  to  the 
plaintiffs  one-third  of  one  cubic  foot  per  second  of  time,  sub- 
ject to  the  prior  right  of  the  defendants  to  the  seven  miner's 
inches,  and  enjoined  the  defendants  from  diverting  the  waters 
of  the  creek  to  the  injury  of  the  plaintiffs.  From  this  judg- 
ment the  defendants  have  appealed. 

Under  the  facts  stated,  the  respondents  having  diverted4  the 
waters  of  the  creek  in  1895  and  applied  the  same  to  beneficial 
uses  with  reasonable  diligence,  their  rights  relate  back  to  the 
date  of  their  original  appropriation.  (0 /field  v.  Ish,  21  Wash. 
277,  57  Pac.  809;  Longmire  v.  Smith,  26  Wash.  439,  67  Pac. 
246,  58  L.  R.  A.  308.)  It  is  equally  apparent  that  Perkins 
acquired  no  rights  by  filing  the  notice  of  claim  of  water  right 
in  1887.  There  was  then  no  law  authorizing  such  a  notice. 
The  notice  was  too  indefinite  to  subserve  any  purpose,  and 
the  notice  was  not  followed  by  a  diversion  of  the  water  and 
its  application  to  beneficial  uses  within  a  reasonable  time.  If, 
therefore,  the  rights  of  the  parties  depend  upon  the  law  of 
prior  appropriation,  it  is  manifest  that  the  rights  of  the  re- 
spondents are  superior  to  those  of  the  appellants,  except  as 
to  the  quantity  of  water  awarded  to  the  latter  by  the  court 
below.  (The  appellants  contend  that  the  respondents  acquired 
no  rights  as  appropriators  by  reason  of  their  failure  to  post 
and  record  a  notice  of  their  appropriation  as  required  by  the 
act  of  March,  1891  (Laws  1891,  p.  327,  c.  142)  ;  but  "the 
statutes  requiring  the  posting  and  recording  of  a  notice  are 


KENDALL  v.  JOYCE.  143 

not  intended  to  change  the  rule  as  to  what  constitutes  a  valid 
appropriation,  but  simply,  by  requiring  an  appropriator  to 
post  and  record  a  notice,  to  apprise  other  persons  contemplat- 
ing the  diversion  of  water  from  the  same  stream  that  the 
appropriator  has  taken  the  first  step  toward  securing  his 
rights,  and  also  to  preserve  the  evidence  thereof.  It  is  act. 
cordingly  held  that,  notwithstanding  the  existence  of  these 
statutes,  a  valid  appropriation  may  be  made  by  an  actual 
diversion  and  use  of  the  water  without  posting  any  notice. 
The  one  who  fails  to  comply  with  the  statute  requiring  notice, 
but  actually  diverts  and  uses  the  water,  acquires  a  good  title 
in  the  absence  of  any  conflicting  adverse  rights,  and  cannot 
be  deprived  thereof  by  another  who  complies  with  the  stat- 
ute at  a  time  subsequent  to  the  former's  completed  diversion. 
Thus  the  failure  of  an  actual  appropriator  of  water  upon  the 
public  domain  to  post  a  notice  as  required  by  law  does  not 
conflict  with  his  right  to  the  water  as  against  one  subsequently 
acquiring  the  land  from  the  government."  (17  Am.  &  Eng. 
Ency.  of  Law,  2d  ed.,  p.  498.) 

The  appellants  further  contend  that  they  acquired  certain 
rights  under  section  2  of  the  act  of  March  4,  1890  (Laws  1889- 
90,  p.  706),  as  successors  in  interest  of  Warren  Perkins,  who 
was  occupying  the  land  at  the  date  of  the  passage  of  that  act. 
The  section  referred  to  reads  as  follows:  "All  persons  who 
claim,  own,  or  hold  a  possessory  right  or  title  to  any  land,  or 
parcel  of  land,  within  the  boundary  of  the  state  of  Washing- 
ton, when  such  lands,  or  any  part  of  the  same,  are  on  the 
banks  of  any  natural  stream  of  water,  shall  be  entitled  to  the 
use  of  any  water  of  said  stream,  not  otherwise  appropriated, 
for  the  purposes  of  irrigation  to  the  full  extent  of  the  soil 
for  agricultural  purposes."  This  section  was  simply  declar- 
atory of  the  existing  law,  viz.,  that  title  acquired  under  a 
patent  from  the  United  States  relates  back  to  the  date  of  set- 
tlement or  filing.  (Sturr  v.  Beck,  133  U.  S.  541,  10  Sup.  Ct. 
350,  33  L.  ed.  761.)  It  has  never  been  contended  that  a  mere 
squatter  on  public  land,  who  subsequently  sells  out  or  aban- 
dons his  claim,  acquires  or  can  acquire  riparian  rights  in  a 
stream  flowing  through  the  land.  Riparian  rights  are  a  mere 
incident  to  ownership  in  the  soil,  and,  while  they  may  relate 
back  by  fiction  of  law  to  the  date  of  settlement  or  filing,  by 


144  WATER  EIGHTS  AND  IRRIGATION  LAW. 

virtue  of  the  patent  subsequently  issued,  yet  they  do  not  vest 
until  patent  issues;  for  up  to  that  time  the  title  to  the  land, 
with  all  its  incidents,  is  vested  in  the  United  States,  utterly 
beyond  the  power  or  control  of  state  legislatures,  and  the 
party  thereafter  acquiring  title  from  the  government  acquires 
the  land  with  all  its  incidents. 

We  are  therefore  of  the  opinion  that  the  respondents  have 
a  valid  claim  to  the  waters  awarded  them  by  the  court  below, 
superior  to  any  claim  on  the  part  of  the  appellants,  and  the 
judgment  is  accordingly  affirmed. 


Settlers'  Rights — Date  from  Final  Proof — Change  of  Place 
of  Diversion. 

WILLIAM     McGUIRE,     Respondent,     v.     MARCELLUS 

BROWN,  Appellant.     W.  A.  DORN,  Intervener. 

(106  Cal.  660,  39  Pac.  1060,  30  L.  E.  A.  384.) 

BRITT,  C. — The  controversy  which  resulted  in  this  action 
arose  between  plaintiff  and  defendant  concerning  the  right 
to  the  use  of  water  flowing  in  Cuyama  creek,  in  the  county  of 
Ventura.  One  W.  A.  Dorn  was  permitted  to  intervene,  he 
asserting  an  interest  in  the  water  superior  to  that  of  both  the 
original  parties;  but,  as  the  court  below  found  against  his 
pretensions  and  dismissed  his  complaint  "without  prejudice," 
and  he  has  not  appealed,  his  claims  are  eliminated  from  the 
case. 

It  appears  from  the  record  that  in  January,  1885,  one  Beek- 
man  took  possession  of  the  northwest  one-quarter  of  a  certain 
section  20,  the  same  being  unappropriated  lands  of  the  United 
States,  and  shortly  afterward  filed  his  declaratory  statement 
as  a  pre-emption  claimant  thereon,  paid  the  purchase  price 
and  obtained  the  receiver's  final  receipt  some  time  in  the  year 
1886,  and  in  June,  1891,  the  United  States  patent  for  the 
same  was  issued  to  him.  At  the  time  Beekman  entered  upon 
said  land  there  was  a  ditch  thereon,  constructed  by  a  former 
occupant,  leading  from  a  point  on  Cuyaina  creek,  within  the 


McGuiRE  v.  BROWN.  145 

boundaries  of  the  northeast  one-quarter  of  said  section  20,  and 
thence  westerly  across  a  part  of  such  northeast  one-quarter 
and  upon  said  northwest  one-quarter,  by  means  of  which  ditch 
water  was  diverted  from  said  creek  and  made  to  flow  upon  the 
latter  quarter  section.  This  ditch  was  repaired  by  Beekman 
in  the  spring  of  1885,  and  was  thenceforward  used  by  him 
to  divert  said  water  for  irrigation  and  for  other  purposes  on 
his  said  land — it  having  a  capacity,  the  court  finds,  of  ninety 
inches,  which  was  filled  when  the  creek  afforded  sufficient 
water,  and  exhausted  the  flow  of  the  creek  at  the  point  of 
diversion  when  the  supply  was  less  than  that  amount. 

In  December,  1888,  Beekman  conveyed  the  land  covered  by 
his  pre-emption  claim — said  northwest  one-quarter  of  section 
20 — together  with  its  appurtenances,  to  one  Crawford,  who 
entered  into  possession.  Crawford  then,  in  May,  1889,  changed 
the  point  of  diversion  of  the  ditch  to  a  place  about  a  quarter 
of  a  mile  farther  up  the  creek,  eastward  from  the  head  of  the 
old  ditch,  and  dug  a  new  ditch  across  the  said  northeast  one- 
quarter,  and  upon  the  northwest  one-quarter  of  said  section 
20,  connecting  with  the  old  ditch  near  the  west  line  of  said 
northwest  one-quarter.  The  new  ditch  had  a  capacity  of 
ninety  inches,  as  the  court  also  found,  and  was  used  by  Craw- 
ford on  his  lands  from  1889  to  1891,  inclusive,  for  the  same 
purposes  that  the  former  ditch  had  been  used  by  Beekman. 

January  20,  1892,  Crawford  conveyed  to  plaintiff  by  deed 
of  grant  said  northwest  one-quarter  of  section  20,  together 
with  all  water  rights  possessed  or  acquired  by  the  grantor, 
' '  either  by  use,  purchase,  or  appropriation. ' ' 

But  in  August,  1888,  Brown,  the  defendant  and  appellant, 
a  person  qualified  to  acquire  land  under  the  homestead  laws, 
settled  upon  said  northeast  one-quarter  of  section  20,  it  being 
then  public  land  of  the  United  States,  and  in  October  of  the 
same  year  he  filed  his  homestead  application  therefor  in  the 
proper  land  office,  paying  the  fees  of  the  receiver  upon  such 
entry  and  obtaining  his  receipt  therefor ;  ever  since  his  settle- 
ment he  has  resided  on  the  land,  cultivating  and  improving 
considerable  portions  of  it,  but  has  not  made  final  proof  nor 
received  a  patent  for  the  same.  When  Crawford  constructed 
the  new  ditch  across  defendant's  homestead  claim  in  1889  de- 
10 


146  WATER  RIGHTS  AND  IRRIGATION  LAW. 

fendant  was  temporarily  absent  therefrom  and  gave  no  consent 
to  the  change,  but,  on  his  return  soon  afterward,  he  made  no 
complaint  or  claim  of  damages,  and  permitted  the  use  thereof 
by  Crawford  and  his  successor,  the  plaintiff,  until  the  month 
of  October,  1892,  when  he  filled  up  such  new  ditch  at  a  point 
on  his  homestead  claim  and  stopped  the  further  flow  of  the 
water,  and  by  force  prevented  plaintiff  from  repairing  the 
ditch.  In  November,  1889,  defendant  constructed  a  ditch 
tapping  Reyes  creek,  a  tributary  of  said  Cuyama  creek,  on 
land  in  section  16,  belonging  to  the  state  of  California,  at  or 
near  the  point  of  confluence  of  the  two  streams,  about  one- 
half  mile  above  the  head  of  the  new  ditch  dug  by  Crawford 
in  May  of  the  same  year,  and  thence  leading  to  his,  defend- 
ant's, homestead  claim,  said  northeast  one-quarter  of  section 
20.  By  means  of  this  ditch  defendant  diverted  water  from 
Reyes  creek  during  the  years  1890,  1891,  and  1892,  and  used 
the  same  for  irrigation  and  other  purposes  on  his  claim,  not 
interfering  with  the  flow  of  water  to  plaintiff's  ditch  during 
the  first  two  of  those  years,  but  increasing  the  amount  di- 
verted during  1892,  so  as  to  materially  lessen  the  quantity 
descending  to  plaintiff.  Plaintiff,  then,  in  September,  1892, 
filled  up  defendant's  ditch  on  said  section  16  so  that  no  water 
could  pass  into  it  from  the  creek.  All  the  lands  above  men- 
tioned lie  in  the  same  township  and  range,  and  are  riparian 
to  Cuyama  creek. 

Plaintiff  commenced  this  action  May  4,  1893,  to  restrain 
defendant  from  interfering  with  the  ditch  and  water  rights 
acquired  by  plaintiff  from  Crawford,  and  for  damages;  de- 
fendant answered  and  also  filed  a  cross-complaint  setting  up 
his  claims  to  the  water  and  to  damages  for  plaintiff's  invasion 
of  his  rights,  and  praying  that  plaintiff  be  restrained  from 
interference  with  his  use  of  the  water,  etc. 

After  trial  the  court  rendered  judgment  determining  that 
plaintiff  has  the  paramount  right  to  ninety  inches  of  the 
water  in  Cuyama  creek,  for  all  useful  and  beneficial  purposes, 
to  be  diverted  through  the  ditch  constructed  by  Crawford  in 
1889,  and  is  the  owner  of  such  ditch,  with  the  right  to  main- 
tain it  across  the  homestead  claim  of  appellant,  and  enjoin- 
ing defendant  from  disturbing  plaintiff's  enjoyment  of  such 
rights.  Also  that  defendant  is  entitled  to  take  ninety  inches 


McGuiBE  v.  BROWN.  147 

of  water  flowing  at  the  head  of  his  ditch  in  section  16,  so 
long  as  the  diversion  of  that  quantity  does  not  reduce  the 
flow  at  the  head  of  plaintiff's  ditch  below  the  same  amount; 
that  defendant  has  the  right  to  maintain  and  use  his  said 
ditch  to  convey  the  water  to  which  he  is  entitled,  and  plain- 
tiff is  restrained  from  interference  therewith.  Plaintiff  is 
awarded  the  entire  flow  of  water  at  and  above  the  head  of 
the  Crawford  (new)  ditch  when  the  quantity  falls  below 
ninety  inches;  also  judgment  for  nominal  damages  and  his 
costs. 

1.  The  first  and  most  important  question  arising  on  this 
record  relates  to  the  right  of  Crawford,  plaintiff's  prede- 
cessor in  interest,  to  enter  upon  the  land  claimed  by  and  in 
possession  of  defendant,  and,  in  the  exercise  of  the  right  to 
change  the  point  of  diversion,  there  construct  a  new  aqueduct 
and  lead  the  water  through  the  same.  For  if  he  had  not  the 
right  to  effect  the  change  in  this  manner,  then  the  defendant 
was  not  in  the  wrong  when  he  obstructed  the  flow  of  the 
water  in  the  new  ditch,  and  the  judgment  restraining  him 
in  that  behalf,  and  establishing  the  right  of  plaintiff  "to 
have,  maintain,  keep  and  use"  such  new  ditch  for  diverting 
and  conveying  the  water  upon  his,  plaintiff's,  land  is  erro- 
neous. 

The  claim  that  Crawford,  the  former  ditch  owner,  wa^ 
justified  in  shifting  the  point  of  diversion  and  the  line  of 
his  ditch  in  the  manner  here  disclosed  is  based  mainly  on  the 
familiar  provisions  of  the  legislation  of  Congress,  sections 
2339  and  2340  of  the  United  States  Revised  Statutes,  con- 
cerning the  rights  of  the  appropriators  of  water  on  the  public 
lands  and  the  saving  of  those  rights  in  patents  for  such  lands 
granted  by  the  government ;  on  section  1412  of  the  Civil  Code 
of  this  state:  "The  person  entitled  to  the  use  may  change 
the  place  of  diversion  if  others  are  not  injured  by  such 
change";  and  on  certain  cases  in  this  court  which  will  be 
noticed  further  on. 

We  do  not  think  that  the  right  of  the  settler,  under  the 
federal  homestead  laws,  on  public  land  through  which  water 
flows  is  of  the  unsubstantial  character  which  the  contention 
of  respondent  implies.  .  .  .  Has  the  prior  appropriator 
license  to  enter  upon  the  homestead  claim  of  such  a  settler 


148  WATER  EIGHTS  AND  IRRIGATION  LAW. 

for  the  purpose  of  materially  changing  thereon  the  point  of 
diversion  and  constructing  new  waterways  through  the  land? 
Is  such  a  license  among  the  servitudes  to  which  the  land  must 
be  submitted? 

We  think  not.  "In  no  just  sense  can  lands  be  said  to  be 
public  lands  after  they  have  been  entered  at  the  land  office 
and  a  certificate  of  entry  obtained.  ...  It  appears  from  the 
evidence  in  this  case  that  on  October  22,  1888,  the  defendant 
made  entry  (within  the  meaning  of  the  authorities  referred 
to)  of  the  land  in  question  in  the  proper  United  States  land 
office,  and  that  his  entry  remains  intact. 

Crawford,  a  witness  for  plaintiff,  testified:  "When  I  went 
there  in  1888  Brown  was  on  the  northeast  one-quarter  of  sec- 
tion 20,  and  I  think  had  a  house.  .  .  .  When  I  made  the 
change  in  my  ditch  Mr.  Brown  was  in  possession  of  his  land. 
We  had  a  fence  between  us,  so  I  ran  with  my  new  ditch 
through  his  fence." 

Here  was  an  entry,  and  here  was  an  actual,  possession  of 
the  land  by  defendant.  In  course  of  time,  and  on  compliance 
with  the  law  relative  to  continuous  residence  and  cultivation, 
he  will  be  entitled  to  a  patent  which  will  invest  him  with  the 
legal  title.  Now,  it  cannot  be  that,  pending  proceedings  for 
the  consummation  of  his  interest  thus  initiated,  any  other 
person  may  rightfully  invade  his  possession  for  the  purpose 
of  making  an  original  appropriation  of  water,  and  so  pos- 
sibly devesting  the  land  of  its  chief  element  of  value,  any 
more  than  for  the  purpose  of  cutting  off  its  timber  or  com- 
mitting other  trespass.  .  .  .  - 

"It  must  be  remembered  that  the  appropriator  is  not  the 
owner  of  the  "very  body  of  the  water"  until  it  passes  into 
the  appliances  he  has  provided  for  its  reception;  before  he 
is  thus  possessed  of  it  he  has  a  mere  right  to  its  continued 
flow,  so  that  he  may  impound  it ;  but  the  stream  itself,  flowing 
in  its  natural  course,  is  a  part  of  the  land  over  which  it  flows. 
(Parks  etc.  Co.  v.  Hoyt,  57  Cal.  46;  Nevada  County  etc.  Co. 
v.  Kidd,  37  Cal.  310,  311.)  And  it  follows  that  after  the  land 
where  the  diversion  is  made  has  ceased,  by  reason  of  a  lawful 
private  appropriation  thereof,  to  be  public  land  and  passed 
into  private  occupancy,  the  occupant  of  the  land — in  this 
case  the  homestead  claimant — is  the  owner  of  the  stream,  in  the 


McGuiRE  v.  BROWN.  149 

same  sense  that  he  is  the  owner  of  the  land,  until  it  comes 
into  the  possession  of  the  appropriator,  and  may  justly  re- 
pel any  attempt  to  interfere  with  such  ownership  at  any 
place  except  that  where  the  diversion  was  effected  when  his 
rights  to  the  land  attached. 

Nor  is  this  necessarily  a  mere  empty  abstract  right;  the 
stream  may  add  beauty  to  the  landscape  or  afford  valuable 
fishing  privileges  or  furnish  useful  mechanical  power,  any 
of  which  elements  of  value  would  be  liable  to  destruction  if 
the  prior  appropriator  may  remove  his  point  of  diversion 
wheresoever  he  will  after  the  inception  of  private  title  to 
the  land  in  another  person.  .  .  . 

The  new  ditch  over  defendant's  claim,  established  as  a 
legal  right  of  plaintiff  by  the  judgment  appealed  from,  was 
constructed  in  virtue  of  an  intrusion  on  defendant's  posses- 
sion during  the  latter 's  temporary  absence  from  his  home, 
and  through  artificial  barriers  erected  by  him;  such  acts,  if 
tolerated  at  all,  must  certainly  tend  to  the  promotion  of  the 
evils  prefigured  in  the  language  of  the  court  just  cited.  .  .  . 

It  follows  that  the  defendant  had  the  right  to  obstruct  the 
flow  of  water  across  his  claim  in  plaintiff's  new  ditch,  and  the 
court  below  erred  in  restraining  him  from  so  doing.  And, 
since  the  plaintiff  insisted  on  taking,  and  did  take,  the  water 
by  means  and  at  a  place  unwarranted  by  his  rights  as  a  prior 
appropriator,  it  results  further  that  the  defendant,  as  entitled 
to  the  flow  of  the  water  after  supplying  the  lawful  require- 
ments only  of  the  plaintiff,  had  the  right  to  use  the  same, 
and  should  recover  the  damages,  if  any,  which  he  sustained 
by  reason  of  the  destruction  of  his  dam  and  the  filling  of  his 
ditch  by  plaintiff,  and  his  consequent  deprivation  of  the 
water. 

2.  But  the  plaintiff  had  the  prior  right  to  the  use  of  the 
water  to  the  extent  of  the  appropriation  made  by  his  prede- 
cessors, Beekman  and  Crawford,  through  the  old  ditch,  prior 
to  the  defendant's  settlement,  together  with  the  right  to  main- 
tain such  ditch.  Brown's  claims  as  a  homestead  settler  were 
subordinate  to  those  interests  and  his  land  was  subject  to  a 
servitude  for  the  support  of  the  same.  (De  Necochea  v. 
Curtis,  80  Cal.  397,  20  Pac.  563,  22  Pac.  198;  Wells  v. 
Mantes,  99  Cal.  583,  34  Pac.  324.)  It  would  be  inflicting  a 


150  WATER  RIGHTS  AND  IRRIGATION  LAW. 

severe  penalty  for  the  trespass  committed  by  Crawford  on  the 
land  of  Brown  and  the  attempt  to  shift  the  location  of  the 
ditch  to  hold  that  by  that  circumstance  alone  Crawford  lost 
for  himself  and  his  successor,  the  plaintiff,  all  prior  right  to 
the  flow  of  the  water  itself;  he  certainly  did  not  intend  to 
abandon  his  interest  in  the  water.  Whether  he  abandoned  his 
property  in  the  former  ditch,  and  the  right  to  lead  water 
through  the  same,  is  a  question  which  has  not  been  argued 
here  or  apparently  litigated  below,  and  ought  not  to  be  now 
decided;  but  the 'parties  should  be  allowed,  if  they  desire, 
to  amend  or  supplement  their  pleadings,  and  to  have  deter- 
mined in  the  trial  court  the  issue  just  suggested  and  any 
other  necessary  to  the  adjustment  of  their  relative  rights 
under  the  law  as  stated  in  this  opinion. 

We  recommend  that  the  judgment  against  the  defendant 
and  the  order  appealed  from  be  reversed,  and  the  cause  re- 
manded for  a  new  trial  and  other  proceedings  not  inconsistent 
with  this  opinion,  both  parties  to  the  'appeal  having  leave  to 
amend  their  pleadings  as  they  may  be  advised. 


'Appropriation — Means  of  Conducting  Water  and  of  Diver- 
sion— Priority. 

LOWER  TULE  RIVER  DITCH  COMPANY,  Respondent,  v. 

ANGIOLA  WATER  COMPANY,  Appellant. 

(149  Cal.  496,  86  Pac.  1081.) 

SHAW,  J. — Appeal  by  defendant  from  a  judgment  in 
favor  of  plaintiff  a  ad  from  an  order  denying  defendant's 
motion  for  a  new  tr'/al. 

The  court  founc\  in  effect,  that  plaintiff  was  seised  of  a 
prior  right,  as  af.ainst  the  defendant,  to  divert  from  Tule 
river,  a  stream  of  water  thereof  amounting  to  a  continuous 
flow  of  twenty-three  feet  per  second,  and  gave  judgment  en- 
joining the  defendant  from  interfering  therewith."  Neither 
party  is  a  riparian  owner  on  the  stream,  both  claiming  solely 
by  appropriation  and  use.  The  claim  of  defendant  is  based 


LOWER  TULE  RIVER  DITCH  Co.  v.  ANGIOLA  WATER  Co.    151 

on  a  notice  of  appropriation  under  the  code,  posted  on  August 
27,  1897,  and  a  subsequent  diversion  and  use  in  pursuance 
thereof.  With  respect  to  the  plaintiff's  claim  the  finding  is, 
in  effect,  that  it  is  founded  on  an  appropriation  and  use  made 
by  N.  P.  Duncan,  plaintiff's  grantor,  in  May,  1897.  The 
sole  objection  presented  on  this  appeal  is  that  the  evidence  is 
insufficient  to  show  a  diversion  and  use  by  Duncan  prior  to 
the  posting  of  defendant's  notice  of  appropriation,  or  to  show 
that  such  diversion  was  made  with  the  intent  and  purpose  to 
apply  the  water  to  any  beneficial  use,  or  that  any  beneficial 
use  was  made  thereof  prior  to  such  posting. 

We  think  there  is  sufficient  evidence  on  these  points  to 
uphold  the  findings  and  the  judgment.  Duncan  was  a  witness 
for  the  plaintiff,  and  testified,  in  substance,  that  in  May,  1897, 
in  order  to  get  water  to  irrigate  his  land,  he  had  a  cut  made 
in  the  levee  confining  the  water  of  the  river,  thereby  diverting 
the  water  into  an  excavation  that  had  been  made  along  the 
outside  of  the  levee;  that  he  made  use  of  this  excavation 
which  was  for  practical  purposes  a  ditch,  to  conduct  the  water 
to  his  land ;  that  he  got  the  water  to  irrigate  his  land  at  that 
time,  and  that  by  means  of  it  he  irrigated  about  two  sections 
of  his  land  for  the  purpose  of  growing  thereon  wild  grasses 
and  feed.  H.  Clawson  also  testified  that  he  saw  the  water, 
in  May,  1897,  running  from  the  river  through  the  cut  in  the 
levee,  and  that  the  water  thus  taken  was  used  during  that 
season  to  irrigate  all  of  Duncan's  land,  together  with  lands 
of  others,  amounting  in  the  aggregate  to  somewhere  near  four 
thousand  acres.  There  was  no  evidence  offered  in  contradic- 
tion of  this  testimony. 

This  was  sufficient  proof  of  the  intent,  the  diversion  or 
appropriation,  and  the  beneficial  use  prior  to  the  posting  -of 
the  defendant's  notice.  A  person  who  is  making  an  appro- 
priation of  water  from  a  natural  source  or  stream  is  not 
bound  to  carry  it  to  the  place  of  use  through  a  ditch  or 
artificial  conduit,  nor  through  a  ditch  or  canal  cut  especially 
for  that  purpose.  He  may  make  use  of  any  natural  or  arti- 
ficial channel,  or  natural  depression,  which  he  may  find  avail- 
able and  convenient  for  that  purpose,  so  long  as  other  persons 
interested  in  such  conduit  do  not  object,  and  his  appropria- 
tion so  made  will,  so  far  as  such  means  of  conducting  the 


152  WATER  RIGHTS  AND  IRRIGATION  LAW. 

water  is  concerned,  be  as  effectual  as  if  he  had  carried  it 
through  a  ditch  or  pipe-line  made  for  that  purpose  and  no 
other.  .... 

For  the  same  reasons  it  is  unnecessary  that  there  should 
be  any  headgate  of  boards  or  masonry  at  the  place  of  diver- 
sion. If  a  simple  cut  will  accomplish  the  purpose  of  divert- 
ing the  water  from  the  stream,  it  is,  if  accompanied  with  a 
beneficial  use,  a  good  appropriation  as  against  others  making 
a  subsequent  diversion  and  use.  There  was  some  testimony 
indicating  a  dual  intent  on  the  part  of  Duncan, — that  is,  a 
purpose  not  only  to  get  water  to  irrigate  his  land,  as  stated, 
but  also  to  draw  off  the  flood  water  from,  and  prevent  it  flow- 
ing to,  some  other  land  owned  by  him  on  which  he  then  had 
a  growing  crop  of  grain.  This  purpose  to  drain  one  tract  of 
land  did  not  vitiate  or  destroy  the  right  to  take  the  water  for 
irrigation  of  other  tracts,  nor  impair  the  right,  acquired  by 
such  appropriation  and  use,  to  take  and  use  it  for  the  latter 
purpose.  The  two  purposes  are  not  inconsistent. 

In  order  to  make  a  valid  appropriation  it  was  not  necessary 
for  Duncan  to  post  and  record  a  notice  of  appropriation  as 
provided  in  the  Civil  Code  (sees.  1415-1721).  The  method  of 
acquiring  a  right  to  the  use  of  water  as  there  prescribed  is 
not  exclusive.  One  may  by  a  prior  actual  and  completed 
appropriation  and  use,  without  proceeding  under  the  code, 
acquire  a  righit  to  the  water  beneficially  used,  which  will  be 
superior  and  paramount  to  the  title  of  one  making  a  subse- 
quent appropriation  from  the  same  stream  in  the  manner  pro- 
vided by  that  statute.  ... 

The  judgment  and  order  are  affirmed. 


TENNEY  v.  THE  MINERS'  DITCH  Co.  153 


Prior  and  Subsequent  Appropriators — "Coming  to 
Nuisance. ' ' 


TENNEY  v.  THE  MINERS'  DITCH  CO. 
(7  Cal.  335.) 

The  plaintiff  brought  this  action  for  damages  to  his  mining 
claim,  sustained  by  reason  of  the  breaking  away  of  a  portion 
of  defendants'  ditch,  owing  to  the  careless  manner  of  its  con- 
struction and  the  consequent  overflowing  of  plaintiff's  claim. 
It  appeared  by  the  record  that  plaintiff  had  located  his  claim 
subsequent  to  the  construction  of  defendant's  ditch.  The 
question  of  negligence  was  submitted  to  the  jury  as  a  question 
of  fact,  under  the  instructions  of  the  court  below,  and  they 
found  a  verdict  for  defendants.  The  substance  of  the  evi- 
dence on  the  question  of  negligence  is  stated  in  the  opinion  of 
the  court,  as  well  as  the  instructions  asked  by  plaintiff,  and 
refused  by  the  court  below,  which  refusal  is  assigned  as  error. 
Motion  for  a  new  trial  was  made  and  overruled,  and  judgment 
entered  for  defendants. 

Plaintiff  appealed  from  the  order  overruling  the  motion  for 
a  new  trial.  .  .  . 

MURRAY,  C.  J.,  delivered  the  opinion  of  the  court — 
TERRY,  J.,  concurring. 

This  was  an  action  of  trespass  on  the  case  for  negligence 
in  constructing  a  water  ditch  so  that  it  gave  way  and  flooded 
the  plaintiff's  mining  claims.  Judgment  for  defendants,  and 
motion  for  new  trial  overruled,  from  which  plaintiffs  appeal. 

The  error  assigned  by  the  appellant  is  the  refusal  of  the 
court  to  give  the  following  instruction:  "That  when  a  ditch 
is  insufficient,  and  breaks  from  the  weight  or  quantity  of 
water  permitted  to  flow  through  the  same,  the  law  presumes 
negligence  in  its  construction  or  continuance,  and  if  from  the 
evidence  the  jury  believe  that  the  defendants'  ditch  was  in- 
sufficient to  carry  the  water  and  broke  from  the  weight  or 
quantity  allowed  to  flow  through  the  same,  and  that  the  plain- 
tiffs were  injured  by  such  breakage,  the  jury  will  find  for 
plaintiffs."  The  correctness  of  this  instruction  must  depend 
upon  the  testimony  before  the  jury. 


151  WATER  EIGHTS  AND  IRRIGATION  LAW. 

It  appears  from  the  record  that  the  question  of  negligence 
has  been  submitted  to  them  as  a  question  of  fact  under  the  in- 
structions of  the  court;  that  evidence  had  been  introduced 
by  the  defendants  to  disprove  the  charge  or  exculpate  them- 
selves. It  was  shown,  among  other  things,  that  the  sides  of 
the  ditch  at  the  place  it  gave  way  had  been  dug  down  or 
injured  by  some  burrowing  animal,  and  also  that  a  tree  had 
accidentally  fallen  across  it,  causing  the  water  to  dam  up,  and 
thereby  creating  a  greater  pressure  upon  the  sides  of  the 
ditch.  It  was  further  shown  that  the  defendants  had  located 
and  constructed  their  ditch  previous  to  the  location  of  the 
plaintiffs'  mining  claims.  No  negligence,  in  fact,  was  shown, 
other  than  that  which  the  law  would  presume  from  the  break- 
^  age  of  the  ditch. 

The  important  fact  having  been  admitted,  that  neither  of 
the  parties  claim  as  holders  of  the  soil,  but  simply  by  virtue  of 
location  and  appropriation,  it  becomes  necessary  to  ascertain 
what  rights  the  plaintiffs,  who  were  subsequent  locators, 
acquired  against  the  defendants. 

Some  of  the  earlier  English  authorities  recognize  the  doc- 
trine that  a  person  may  (even  as  between  owners  of  the  soil) 
construct  or  continue  what  would  otherwise  be  an  actionable 
nuisance,  provided  that,  at  the  commencement  of  it,  no  person 
was  in  a  condition  to  be  injured  by  it,  or,  in  other  words,  that 
mere  priority  as  between  owners  of  the  soil  gave  a  superior 
right.  If  a  person  afterward  by  building,  or  otherwise,  put 
himself  in  a  situation  to  be  injured  by  such  structure,  it  was 
termed  ' '  coming  to  a  nuisance. ' ' 

This  doctrine  has  long  since  been  exploded  on  the  most 
obvious  principles  of  sound  reason.  The  right  of  the  owner 
of  the  soil  to  the  free  use  and  enjoyment  of  the  same  is  held 
to  exist  anterior  to  any  erection  that  may  be  made  by  an 
adjoining  proprietor,  and  in  such  cases  the  maxim  "Sic  utere 
tuo  ut  alienum  non  laedas"  applies.  It  will  be  observed  that 
the  reason  of  the  rule  is  founded  on  the  ownership  of  the  soil, 
and  that  as  between  proprietors  the  same  rights  or  privileges 
are  supposed  to  exist  (except  in  some  few  instances)  ;  but  in 
a  case  like  the  present,  where  neither  party  claims  an  owner- 
ship in  the  soil,  and  all  the  rights  they  possess  relate  back,  or 
are  acquired  at  the  date  of  their  respective  locations,  the 


COLE  v.  LOGAN.  155 

reason  of  the  rule  ceases,  and  the  maxim  "Qui  prior  est  in 
tempore,  potior  est  in  jure,"  as  applied  by  this  court  to  cases 
involving  disputes  growing  out  of  mining  claims,  would  seem 
more  applicable. 

In  fact,  any  other  rule  would  allow  a  malevolent  person  to 
make  a  trespass  whenever  he  pleased,  by  settling  along  the 
line  of  a  water  ditch  or  canal  where  he  supposed,  from  its 
location  or  construction,  it  was  most  likely  to  give  way. 
There  is  no  doubt  that  the  owners  of  a  ditch  would  be  liable 
for  wanton  injury  or  gross  negligence,  but  not  for  a  mere 
accidental  injury  where  no  negligence  was  shown.  In  such 
eases,  the  maxim  "Sic  utere,"  etc.,  must  be  construed  with 
reference  to  the  rights  of  all  the  parties  concerned,  and  no 
man  can  be  deprived  of  the  due  enjoyment  of  his  property 
and  held  answerable  in  damages  for  the  reasonable  exercise 
of  a  right.  (Ostrander  v.  Brown,  15  Johns.  43;  Panton  v. 
Holland,  17  Johns.  99;  Townsendv.  President,  etc.,  6  Johns. 
90;  and  3  Man.  &  G.  315.)  In  the  latter  case  it  was  held  that 
a  railroad  company  were  not  liable  for  damages  caused  by  fire 
from  sparks  from  their  engine,  unless  negligence  was  proven 
by  the  plaintiff. 

Having  thus  established  what  we  believe  to  be  the  law  of 
the  case,  it  follows  that  the  court  properly  refused  the  instruc- 
tion asked. 

Judgment  affirmed. 


Appropriation — Diligence — Abandonment — Priorny, 


COLE  et  al.  v.  LOGAN. 

(24  Or.  304,  33  Pac.  568.) 

'Action  by  J.  L.  Cole  and  Benjamin  F.  Kendall  against 
William  L.  Logan  to  enjoin  defendant  from  diverting  the 
waters  of  a  certain  creek.  From  the  decree  rendered  both 
parties  appeal.  Modified. 

The  other  facts  fully  appear  in  the  following  statement  by 
MOORE,  J.: 


156  WATER  RIGHTS  AND  IRRIGATION  LAW. 

This  is  a  suit  to  enjoin  the  defendant  from  diverting  the 
waters  of  Willow  creek.  The  material  facts  are  that  Willow 
creek  rises  in  a  spur  of  the  Blue  mountains,  flows  in  a  south- 
easterly direction,  in  a  well-defined  channel,  through  the  lands 
of  the  parties  hereto,  and  empties  into  the  Malheur  river  in 
Malheur  county,  Oregon.  That  the  defendant  has  diverted 
the  waters  thereof  by  a  ditch  on  the  north  side  of  the  creek, 
and  the  plaintiffs  by  a  ditch  on  the  south  side,  and  that  their 
lands  are  arid,  and  nearly  valueless  without  water,  but  by 
irrigation  they  have  become  very  productive,  and  yield  large 
crops  of  hay  and  fruit.  That  defendant  settled  upon  his 
tract  in  July,  1870,  built  a  dam  in  the  channel  of  the  creek, 
dug  a  ditch,  and  conducted  the  water  to  a  garden  of  about 
two  acres,  cultivated  by  him  in  1871.  That  on  January  27, 
1872,  the  said  tract  having  in  the  meantime  been  surveyed 
and  platted  as  the  east  one-half  of  the  northwest  one-quarter 
and  the  west  one-half  of  the  northeast  one-quarter  of  sec- 
tion 24,  in  township  15  south  of  range  42  east  of  the  Wil- 
lamette meridian,  he  filed  a  pre-emption  declaratory  state- 
ment thereon,  which  on  November  3,  1874,  he  commuted 
into  a  homestead,  made  his  final  proof  July  5,  1880,  and  on 
December  10,  1880,  obtained  the  United  States  patent  there- 
for. That  the  plaintiff  J.  L.  Cole,  in  October,  1871,  made  a 
homestead  filing  upon  the  south  one-half  of  the  southeast  one- 
quarter,  the  northwest  one-quarter  of  the  southeast  one-quar- 
ter, and  the  northeast  one-quarter  of  the  southwest  one- 
quarter  of  section  14,  in  said  town  and  range,  and  on  Novem- 
ber 30,  1878,  obtained  a  patent  from  the  United  States  there- 
for. That  about  December  10,  1872,  the  said  Cole  and  one  C. 
Eaton  commenced  to  build  a  dam  in  the  channel  of  said  creek 
at  a  point  about  three  miles  above  defendant's  dam,  which 
they  completed  about  January  10,  1873,  and  about  three 
months  thereafter  they  had  completed  about  one  mile  of  the 
ditch  from  the  dam  toward  their  lands.  That  Eaton  assigned 
his  interest  in  the  ditch  to  one  James  Cole,  who  filed  a  pre-emp- 
tion claim  upon  the  southwest  one-quarter  of  the  northwest  one- 
quarter  and  the  northwest  one-quarter  of  the  southwest  one- 
quarter  of  section  14,  in  said  town  and  range,  and  on  October 
30, 1882,  obtained  the  United  States  patent  therefor,  which  tract 
of  land  and  interest  in  the  ditch  he  conveyed  to  the  plaintiff 


COLE  v.  LOGAN.  157 

B.  F.  Kendall,  who  is  now  the  owner  thereof.  That  in  Octo- 
ber, 1871,  the  defendant  surveyed  a  line  for  a  new  ditch  from 
his  homestead  to  a  point  on  the  creek  about  one  mile  below 
that  where  plaintiffs  afterward  built  their  dam,  and  on  Janu- 
ary, 1872,  filed  with  the  county  clerk  of  the  proper  county  a 
notice  of  his  claim  to  appropriate  two  hundred  and  fifty 
inches  of  water  of  said  creek,  and  commenced  to  dig  the 
ditch  on  the  line  of  the  survey,  but,  encountering  quicksand 
after  completing  it  to  a  point  within  six  feet  of  the  creek,  he 
was  obliged  to  abandon  it,  and  in  1873  surveyed  another  line 
to  a  point  about  thirty  yards  above  plaintiffs'  dam,  and  com- 
menced to  dig  a  ditch  on  the  new  line,  and,  after  working 
thereon  each  year,  and  expending  about  $2,000,  he  completed 
it  in  1883.  That  the  plaintiffs  assisted  him  in  building  a  new 
dam,  moved  their  tap  to  this  point,  and,  as  they  testify,  agreed 
that  the  defendant  might  have  the  surplus  water  of  the  creek. 
That  on  March  6,  1883,  the  defendant  acquired  the  legal  title 
from  one  W.  R.  Kelly  and  wife  to  the  northeast  one-quarter 
of  the  southeast  one-quarter  of  said  section  14,  and  moved  to  a 
house  thereon,  about  one-half  mile  from  his  former  home.  That 
the  defendant  also  claimed  a  possessory  right  to  the  southwest 
one-quarter  of  section  13,  in  said  town  and  range,  upon  a  pre- 
emption filing  thereon,  but  that  the  title  thereto  was  also 
claimed  by  the  Dalles  Military  Wagon  Road  Company.  That 
from  1872  to  1891  the  El  Dorado  Ditch  Company  had  di- 
verted about  one  thousand  inches  of  water  from  Burnt  river, 
and  discharged  it  into  Willow  creek  about  twelve  miles  above 
defendant's  homestead;  and  that  in  1877  the  defendant  had 
permitted  the  Willow  Creek  Irrigating  Company  to  enlarge 
the  ditch  first  made  by  him,  and  convey  the  water  of  Willow 
creek  across  his  homestead,  to  irrigate  lands  lying  below  his 
claim.  That  a  small  stream,  known  as  "Becker  creek,"  flowed 
across  the  Kelly  tract,  and  another  small  stream,  known  as 
' '  Pole  creek, ' '  flowed  across  the  plaintiff  Cole 's  land,  and  each 
emptied  into  Willow  creek  at  places  above  the  defendant's 
point  of  diversion  on  his  homestead.  That  Kelly  and  the  de- 
fendant used  the  waters  of  Becker  creek  in  irrigating  the 
Kelly  place,  and  that  Cole  had  used  the  waters  of  Pole  creek. 
That  the  defendant,  prior  to  1877,  had  cultivated  about  twelve 
acres  of  his  homestead,  but  that  after  the  Willow  Creek  Irri- 


158  WATER  RIGHTS  AND  IRRIGATION  LAW. 

gating  Ditch  Company  had  enlarged  his  ditch  the  cultivated 
land  on  the  homestead  had  nearly  grown  up  with  willows. 
That  the  plaintiffs  and  defendant  used  the  same  dam,  and  di- 
verted the  waters  of  the  creek  at  opposite  points,  from  1884  to 
1889,  when,  the  dam  becoming  filled  with  debris  from  the  mines 
above,  plaintiffs  moved  their  tap  farther  up  the  stream,  and 
on  May  19,  1891,  the  defendant  moved  his  tap  above  theirs, 
and  diverted  the  water  for  five  hours,  whereupon  the  plaintiffs 
again  moved  their  ditch  above  his,  diverted  all  the  water  of 
the  creek,  and  commenced  this  suit,  in  which  they  allege  a 
prior  appropriation  of  the  whole  amount  of  water,  consist- 
ing of  about  four  hundred  inches,  and  a  diversion  thereof  by 
the  defendant,  who  denies  the  allegations  of  the  complaint, 
except  the  diversion  of  one  hundred  and  fifty  inches,  and  al- 
leges that  he  was  the  prior  appropriator  of  the  said  waters. 
After  the  issues  were  completed,  the  testimony  was  taken  be- 
fore a  referee,  and  at  the  hearing  the  court  found  that  defend- 
ant was  the  prior  appropriator  of  twenty  inches  of  water,  and 
decreed  that  he  was  entitled  to  divert  that  quantity  under  a  six- 
inch  pressure,  and  that  plaintiffs  were  entitled  to  divert  three 
hundred  inches  under  a  like  pressure,  and  that  neither  party 
should  recover  costs,  from  which  decree  the  defendant  ap- 
peals ;  while  the  plaintiffs  appeal  from  so  much  thereof  as  de- 
crees the  prior  right  of  defendant  to  twenty  inches  of  water, 
and  enjoins  them  from  interfering  therewith,  and  also  from 
the  portion  thereof  relating  to  costs. 

R.  G.  Wheeler  and  J.  L.  Rand,  for  Appellant. 
M.  L.  Olmsted,  for  Respondents. 

MOORE,  J.  (after  stating  the  facts). — The  evidence  con- 
clusively shows  that  the  defendant  was  a  prior  appropriator 
of  the  waters  of  Willow  creek.  He  made  his  settlement  upon 
an  unsurveyed  tract  of  land  with  the  intention  of  acquiring 
the  title  thereto  from  the  government  of  the  United  States, 
and  had  diverted  and  appropriated  the  water  of  said  creek 
two  and  one-half  years  prior  to  the  building  of  plaintiffs'  dam ; 
and  when  the  defendant  made  his  proof  and  obtained  his  pat- 
ent his  title  related  back  to  the  time  of  his  settlement  (Faull 
v.  Cooke,  19  Or.  455,  20  Am.  St.  Rep.  836,  26  Pac.  662;  Larsen 


COLE  v.  LOGAN.  159 

v.  Oregon  etc.  Navigation  Co.,  19  Or.  240,  23  Pac.  974;  Sturr 
v.  Beck,  133  U.  S.  541,  10  Sup.  Ct.  350,  33  L.  ed.  761),  and 
hence  it  follows  that  at  the  time  plaintiffs  made  their  appro- 
priation of  the  waters  of  "Willow  creek  the  defendant's  rights 
as  a  prior  appropriator  had  attached,  and  he  was  entitled  to 
the  quantity  of  water  he  had  diverted  and  appropriated  for 
the  purpose  of  irrigating  his  homestead,  and  that  the  plaintiffs 
made  their  diversion  and  appropriation  subject  thereto. 
(Kaler  v.  Campbell,  13  Or.  596,  11  Pac.  301.)  The  evidence 
shows  that  on  "Willow  creek  there  was  a  local  custom  which  re- 
quired the  claimant  to  file  for  record  with  the  county  clerk  a 
notice  of  his  claim  to  appropriate  the  water  of  a  natural 
stream,  and  that  in  pursuance  of  such  custom  the  defendant, 
in  January,  1872,  filed  with  the  county  clerk  of  Baker  county 
a  notice  of  his  claim  to  appropriate  two  hundred  and  fifty 
inches  of  the  water  of  said  creek  upon  the  line  of  his  sur- 
vey made  in  October,  1871.  If,  instead  of  being  obliged  to 
abandon  his  ditch  on  this  line  in  1873,  he  had  completed  it, 
so  as  to  have  been  able  to  divert  the  water  thereby,  and  ap- 
propriate it  in  irrigating  his  homestead,  he  would  doubtless 
have  had  a  prior  right  to  the  use  of  a  sufficient  quantity  to 
irrigate  his  land,  assuming  that  his  diversion  was  begun  within 
a  reasonable  time,  and  was  prosecuted  with  due  and  reason- 
able diligence ;  and  his  appropriation  would  have  related  back 
at  least  to  the  time  of  commencing  the  work,  if  not  to  the 
time  of  giving  the  notice,  or  to  the  time  of  the  survey.  (Pom. 
Rip.  Rights,  sec.  52.)  When  he  abandoned  the  survey  of  1871, 
and  made  another  to  tap  the  creek  at  or  near  plaintiff's  dam, 
in  order  to  enable  him  to  hold  the  rights  acquired  under  such 
original  survey,  he  must  have  commenced  the  diversion  within 
a  reasonable  time,  and  must  have  prosecuted  it  with  due  and 
reasonable  diligence.  "While  the  evidence  shows  that  the  ditch 
on  the  line  of  the  new  survey  was  commenced  in  1873;  that 
some  work  was  done  thereon  each  year,  and  that  it  was  com- 
pleted so  as  to  divert  the  water  in  1883,  at  a  cost  of  about 
$2,000, — it  fails  to  show  what  amount  of  labor  or  of  money 
was  expended  thereon  in  any  one  year,  and  the  defendant 
pleads  as  an  excuse  for  the  delay  his  inability  to  raise  the 
necessary  means  to  prosecute  the  work.  .  .  .  The  evidence  fur- 
ther shows  that  from  1871  to  1873  the  defendant  dug  about 


160  WATER  RIGHTS  AND  IRRIGATION  LAW. 

one  and  one-quarter  miles  of  ditch,  and  that  quite  a  portion 
of  it  was  through  quicksand,  but  that  it  took  ten  years  to  dig 
about  one  and  one-half  miles  to  complete  the  new  ditch.  It 
does  not  appear  that  there  was  much  difference  in  the  char- 
acter of  the  country  through  which  the  new  ditch  was  dug,  as 
compared  with  that  along  the  line  of  the  old  one,  nor  that  it 
was  difficult  to  procure  labor  or  material  for  the  work;  and, 
defendant's  only  excuse  for  delay  being  pecuniary  inability, 
we  must  conclude,  in  connection  with  the  other  facts,  that  the 
defendant  did  not  prosecute  his  diversion  with  due  and  reason- 
able diligence,  and  that  he  could  have  completed  the  ditch 
much  sooner  than  he  did.  The  authorities  clearly  show  that 
the  claimant's  pecuniary  condition  is  not  an  excuse,  and, 
though  the  doctrine  may  seem  harsh,  it  is,  nevertheless,  right. 
If  the  rule  were  otherwise,  the  prior  settler  on  a  creek,  if  he 
were  ill  or  poor,  could  make  a  survey  from  his  claim  to  some 
desirable  point  above  him  on  the  stream,  or  give  any  other 
notice  of  his  intention  to  appropriate  the  water,  and,  by  do- 
ing such  work  as  his  health  or  means  would  permit,  could 
ultimately  divert  the  water  at  such  point,  and  claim  a  prior 
right,  without  regard  to  the  number  of  subsequent  appropria- 
tors  below  such  point  of  diversion  or  above  it,  when  the  water 
was  used  and  returned  before  it  reached  the  claimant's  land. 
Hence,  it  follows  that  defendant  could  not  by  the  comple- 
tion of  his  ditch  in  1883  claim  a  diversion  of  the  water  so  as 
to  relate  back  to  1871,  and  that  the  diversion  at  this  point  was 
subsequent  to  plaintiffs.  The  defendant,  however,  having 
made  a  prior  appropriation  of  the  water  at  his  homestead, 
has  the  prior  right  to  the  use  thereof,  unless  he  has  abandoned 
his  claim  thereto.  The  fact  that  he  in  1873  commenced  the 
survey  of  another  ditch  from  his  homestead  to  tap  the  creek 
at  a  point  farther  up  the  stream  shows  that  he  had  not 
abandoned  the  idea  of  irrigating  his  land;  and  while  it  ap- 
pears that  his  old  ditch  had  been,  in  1877,  enlarged  and  used, 
with  his  consent,  by  the  Willow  Creek  Irrigating  Company, 
it  also  appears  that  from  1872  to  1891  the  El  Dorado  Ditch 
Company  had  diverted  about  one  thousand  inches  of  water 
from  Burnt  river,  and  discharged  the  same  into  Willow  creek 
at  a  point  above  defendant's  homestead,  and  thus  it  would 


COLE  v.  LOGAN.  161 

seem  to  follow,  in  the  absence  of  any  evidence  of  the  right  of 
the  "Willow  Creek  Irrigating  Company,  that  it  took  no  rights 
from  the  defendant  therein  except  as  to  the  surplus  water 
from  Burnt  river,  and  that  defendant  had  claimed  and  re- 
served his  rights  to  the  use  of  his  original  diversion  from 
Willow  creek.  The  defendant,  as  a  prior  appropriator,  is  en- 
titled to  a  quantity  of  water  sufficient  to  irrigate  his  home- 
stead, and  his  original  appropriation  may  be  made  with 
reference  to  the  quantity  of  water  needed  to  irrigate  the  land 
he  designs  to  put  into  cultivation.  ''The  needs  or  purpose 
for  which  the  appropriation  is  made  is  the  limit  to  the  amount 
of  water  which  may  be  taken."  (Simmons  v.  Winters,  21  Or. 
35,  28  Am.  St.  Rep.  727,  27  Pac.  7.)  The  defendant,  as  a 
prior  appropriator,  did  not  find  it  necessary  to  divert  or  ap- 
propriate in  1871  all  the  water  he  ultimately  intended  to  use 
in  the  irrigation  of  his  lands.  As  he  adds  to  the  area  of  his 
cultivated  land  he  may  increase  the  amount  of  his  diversion 
until  he  has  acquired  the  quantity  necessary  to  properly  irri- 
gate the  whole  tract,  and  any  subsequent  appropriator  diverts 
the  water  subject  to  such  prior  claim.  To  entitle  the  defend- 
ant, however,  to  the  benefit  of  such  an  appropriation,  he  should 
within  a  reasonable  time  apply  the  water  to  such  beneficial 
use.  As  fast  as  he  could  reasonably  put  his  homestead  into 
cultivation,  he  is  entitled  to  divert  and  use  the  water  for  that 
purpose.  The  rule  established  in  Simmons  v.  Winters,  supra, 
is  just  and  reasonable;  but  it  is  not  intended  that  because  a 
prior  appropriator  is  entitled  to  a  given  quantity  of  water 
necessary  to  irrigate  the  land  he  intends  to  cultivate  he  can 
suspend  his  improvements  an  unreasonable  time,  and  then,  by 
adding  to  the  area  of  his  cultivated  land,  be  restored  to  his 
original  intentional  diversion,  when  subsequent  appropriators 
have  acquired  rights  in  the  stream.  The  fact  that  he  for  an 
unreasonable  time  delays  additional  cultivation  should  be  con- 
strued into  an  abandonment  of  his  original  claim  to  divert  a 
sufficient  quantity  to  irrigate  his  whole  tract,  and  his  appro- 
priation, after  such  unreasonable  delay,  should  be  confined  to 
his  necessary  use,  as  applied  to  the  lands  he  had  cultivated 
within  a  reasonable  time  before  subsequent  rights  had  accrued. 
(Eindman  v.  Rizor,  21  Or.  112,  27  Pac.  13.) 
11 


162  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  evidence  also  shows  that  defendant  had  at  one  time 
cultivated  on  his  homestead  about  twelve  acres,  but  that  since 
he  moved  from  that  tract  he  not  only  failed  to  add  to  its  im- 
provement, but  has  permitted  the  portion  of  it  so  cultivated 
to  grow  up  in  willows,  which,  taken  in  connection  with  the 
facts  and  circumstances  of  the  case,  indicate  that  the  defend- 
ant had  abandoned  his  intention  to  increase  the  area  of  culti- 
vated land  upon  his  homestead.  The  court  below  found  that 
twenty  inches  was  the  quantity  to  which  he  was  entitled,  and, 
while  there  is  much  conflict  of  testimony  upon  this  subject, 
we  do  not  feel  like  disturbing  this  finding.  It  is  to  be  pre- 
sumed, however,  that  since  the  waters  of  Becker  creek  flow 
across  the  Kelly  tract,  and  the  defendant  uses  it  for  irriga- 
tion thereon,  the  court  must  have  considered  this  fact,  and 
that  the  award  of  twenty  inches  must  have  been  from  the 
waters  of  Willow  creek,  and  did  not  include  any  of  the  waters 
of  Becker  creek.  The  defendant,  having  made  a  diversion  of 
the  water  in  1871,  could  not  thereafter  change  the  point  of 
his  diversion  if  it  injuriously  affected  the  rights  of  any  sub- 
sequent appropriator.  (Kidd  v.  Laird,  15  Cal.  161,  76  Am. 
Dec.  472;  Butte  Table  Mountain  Co.  v.  Morgan,  19  Cal.  609.) 
Did  the  change  of  the  point  of  diversion  injuriously  affect 
the  plaintiffs?  It  appears  from  the  evidence  that  the  plain- 
tiffs diverted  and  used  all  the  water  of  the  creek,  but  that 
the  plaintiff  Kendall  returned  the  waste  water  to  the  creek 
at  a  point  above,  and  the  plaintiff  Cole  at  a  point  below,  de- 
fendant's land.  If  Kendall,  as  a  subsequent  appropriator, 
had,  with  knowledge  of  the  defendant's  diversion,  tapped  the 
creek  at  a  point  above,  used  and  returned  the  whole  volume 
of  the  water  above  the  defendant's  point  of  diversion,  the 
defendant  could  not  have  been  injured  thereby;  while  under 
the  same  state  of  facts  the  defendant,  by  changing  his  point 
of  diversion,  and  tapping  the  creek  above  Kendall's  dam, 
could  have  taken  the  whole  amount  of  the  water,  and  would 
have  injuriously  affected  that  plaintiff.  If,  by  taking  the 
whole  the  plaintiff  Kendall  would  have  been  affected,  he  would 
also  have  been  affected  injuriously  by  the  taking  of  a  part, 
and  hence  it  follows  that  any  change  made  by  the  defendant 
to  a  point  above  plaintiff's  dam  would  injuriously  affect  their 
right.  The  defendant  is  entitled  to  the  flow  of  twenty  inches 


SMITH  v.  HAWKINS.  163 

of  water  in  the  channel  of  the  creek,  and  may  divert  the  same, 
at  any  point  below  the  plaintiff's  dam,  for  the  purpose  of  ir- 
rigating any  of  his  lands.  The  testimony  does  not  show  what 
amount  of  water  flows  in  the  channel  of  the  creek  at  any  place 
below  this  dam,  and  the  plaintiffs  will  be  enjoined  from  divert- 
ing the  waters  from  the  channel  of  said  creek  so  as  to  reduce 
defendant's  supply  to  less  than  twenty  inches  of  water,  not 
including  that  of  Becker  creek,  and  this  quantity  will  be 
measured  under  a  six-inch  pressure,  at  a  point  below  that 
where  the  plaintiff  Kendall's  ditch  enters  the  creek.  .  .  .  The 
decree  of  the  court  below  will  be  modified  and  one  entered 
in  accordance  with  this  opinion. 


Appropriation — Easement — Forfeiture  of  Right. 

MARY  ELLA  SMITH    et  al.,  Respondents,  v.  PATRICK 
HAWKINS,   Appellant, 
(110  Cal.  122,  42  Pac.  453.) 

THE  COURT.— Action  begun  in  October,  1892,  to  quiet  the 
alleged  title  of  plaintiffs  to  a  dam,  ditch,  and  water  right  for 
the  diversion  of  the  waters  of  Wolf  creek,  in  Nevada  county. 
As  early  as  the  year  1862,  one  John  Ross  was  in  possession  of 
the  ditch  and  sold  water  from  the  same.  The  ditch  claimed 
by  plaintiffs  is  two-thirds  of  a  mile  in  length;  its  original  ca- 
pacity was  four  hundred  and  fifty-seven  inches  of  water, 
though  it  seems  to  be  now  so  filled  up  as  to  be  capable  of  carry- 
ing about  one  hundred  inches  only.  Plaintiffs  claim  in  virtue 
of  a  deed  to  them  executed  by  Ross  in  March,  1888,  which, 
for  the  purposes  of  the  decision,  we  shall  assume  was  suffi- 
cient to  convey  his  title  to  the  property  in  dispute.  Since 
the  year  1875,  taxes  have  been  annually  assessed  against  such 
property  and  paid  by  Ross  and  his  successors,  the  plaintiffs. 
In  1890  it  was  leased  by  plaintiffs  to  persons  who  made  no 
use  of  it,  but  who  paid  two  months'  rental  therefor  at  fifteen 
dollars  per  month. 


164  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Defendant  owns  a  piece  of  land  lying  below  the  head  of  the 
Ross  ditch  and  riparian  to  said  creek;  one-fourth  of  a  mile 
of  the  length  of  such  ditch  is  on  defendant's  said  land,  and 
was  there  constructed  before  defendant  settled  on  the  same; 
he  having  acquired  title  to  the  land  under  the  federal  home- 
stead laws,  the  patent  therefor  was  issued  to  him  in  1891.  In 
1879  the  defendant  constructed  a  ditch  tapping  the  creek 
about  fifty  feet  below  the  Ross  dam  and  having  a  capacity  of 
two  hundred  inches  of  water  under  six-inch  pressure ;  and,  by 
that  means,  for  thirteen  years  next  before  the  commencement 
of  this  action  continuously,  uninterruptedly,  with  a  claim  of 
right,  peaceably  and  with  the  knowledge  of  plaintiffs  and  said 
Ross,  defendant  diverted  such  water  to  the  extent  of  the  ca- 
pacity of  his  ditch,  and  used  the  same  for  agricultural  pur- 
poses on  his  said  land.  For  the  period  of  five  years  and*  more 
next  before  the  commencement  of  the  action,  the  dam,  ditch, 
and  water  right  claimed  by  plaintiffs  have  not  been  used  by 
Ross,  or  anyone  who  has  succeeded  to  his  interest,  for  any 
useful  or  beneficial  purpose;  neither  he  nor  they  have  ever 
owned  any  property  below  the  head  of  that  ditch  to  which  the 
water  could  be  applied ;  for  any  purpose  of  profit  its  use  was 
contingent  on  its  sale  or  rental  to  other  persons ;  and  this  oc- 
curred very  infrequently.  The  court  found  that  plaintiffs  are 
the  owners  of  the  property  claimed  by  them ;  that  enough 
water  flows  in  the  creek  to  fill  both  ditches  to  their  full  ca- 
pacity; that  the  use  of  the  water  by  defendant  has  not  been 
adverse;  that  his  rights  to  the  water  are  subordinate  to  those 
of  plaintiffs;  and  gave  judgment  in  plaintiffs'  favor.  We 
think  these  conclusions  are  contrary  to  the  evidence  in  several 
particulars. 

1.  The  finding  that  during  the  time  defendant  has  diverted 
the  water  an  excess  has  flowed  in  the  creek  above  the  capacity 
of  both  ditches  finds  support  in  an  observation  only  of  the 
judge  of  the  court  below  who  visited  the  premises  just  prior 
to  the  judgment  in  the  action — rendered  April  3,  1893 — and 
then  saw  water  flowing  in  the  creek  as  stated  in  the  finding. 
This  single  observation,  made  near  the  close  of  the  rainy  sea- 
son, is  wholly  insufficient  to  sustain  the  finding  in  view  of 
other  uncontradicted  evidence  that  during  one  season  all  of 
the  water  of  the  creek  was  taken  in  one  <fc  the  ditches. 


SMITH  v.  HAWKINS.  165 

2.  Plaintiff's  predecessor  in  interest  appropriated  water  by 
means  of  his  ditch,  and  conveyed  it  over  and  across  the  land 
of  the  defendant,  which,  at  the  time  of  appropriation,  was  a 
part  of  the  public  domain.  While  the  rights  of  rival  claim- 
ants and  appropriators,  as  between  themselves,  had  for  a  long 
time  been  recognized  and  adjusted,  both  bj  mining  custom 
and  adjudications  in  the  state  courts,  it  was  not  until  1866 
that  they  met  with  federal  cognizance  and  sanction.  In  that 
year  the  United  States  conferred  upon  those  who  had  or  who 
might  thereafter  appropriate  water,  and  conduct  the  same 
over  the  public  land,  a  license  so  to  do ;  and  further  provided 
that  all  patents  granted,  or  pre-emptions  or  homesteads  al- 
lowed, should  be  subject  to  any  such  vested  and  accrued  water 
rights,  or  rights  to  ditches  and  reservoirs  used  in  connection 
with  such  water  rights,  as  might  have  been  acquired  under  or 
recognized  by  the  act.  (U.  S.  Rev.  Stats.,  sees.  2339,  2340.) 

An  appropriator  of  water  under  these  circumstances,  and 
while  the  land  which  he  subjects  to  his  necessary  uses  con- 
tinues to  be  part  of  the  public  domain,  is  a  licensee  of  the 
general  government;  but  when  such  part  of  the  public  do- 
main passes  into  private  ownership  it  is  burdened  by  the  ease- 
ment granted  by  the  United  States  to  the  appropriator,  who 
holds  his  rights  against  this  land  under  an  express  grant.  In 
this  essential  respect,  that  is  to  say,  in  the  origin  of  the  title 
under  which  the  servient  tenement  is  subjected  to  the  use, 
one  holding  water  rights  by  such  appropriation  differs  from 
one  who  holds  water  rights  by  prescription. 

The  differences  are  twofold.  A  prescriptive  right  could  not1 
be  acquired  against  the  United  States,  and  can  be  acquired  only 
by  one  claimant  against  another  private  individual.  Again, 
such  an  appropriation,  to  perfect  the  rights  of  the  appropria- 
tor, does  not  necessitate  use  for  any  given  length  of  time,  while 
time  and  adverse  use  are  essential  elements  to  the  perfection  of 
a  prescriptive  right.  One  who  claims  a  right  by  prescription 
must  use  the  water  continuously,  uninterruptedly,  and  ad- 
versely for  a  period  of  at  least  five  years,  after  which  time 
the  law  will  conclusively  presume  an  antecedent  grant  to  him 
of  his  asserted  right. 

Section  811  of  the  Civil  Code,  subdivision  4,  discussing  the 
extinguishment  of  servitudes,  declares :  When  the  servitude  is 


166  WATER  RIGHTS  AND  IRRIGATION  LAW. 

acquired  by  enjoyment,  disuse  thereof  by  the  owner  of  the 
servitude  for  the  period  prescribed  for  acquiring  title  by  en- 
joyment extinguishes  the  servitude.  That  this  section  cannot 
in  strictness  be  applied  to  rights  under  such  an  appropriation 
as  we  have  been  discussing  becomes  obvious  when,  as  above 
pointed  out,  it  is  considered  that  there  is  no  period  prescribed 
for  acquiring  title  to  such  rights.  Section  811,  therefore, 
deals  with  the  extinguishment  of  servitudes  resting  upon  pre- 
scriptive right,  a  right  vesting  by  reason  of  continued  adverse 
enjoyment. 

Section  1411  of  the  Civil  Code  declares  that  the  appropria- 
tion must  be  for  some  useful  or  beneficial  purpose,  and  when 
the  appropriator  or  his  successor  in  interest  ceases  to  use  it 
for  such  purpose,  the  right  ceases.  This  section  deals  with 
the  forfeiture  of  a  right  by  nonuser  alone.  We  say  nonuser, 
as  distinguished  from  abandonment.  If  an  appropriator  has, 
in  fact,  abandoned  his  right,  it  would  matter  not  for  how  long 
a  time  he  had  ceased  to  use  the  water,  for  the  moment  that 
the  abandonment  itself  was  complete  his  rights  would  cease 
and  determine.  Upon  the  other  hand,  he  may  have  leased  his 
property,  and  paid  taxes  thereon,  thus  negativing  the  idea 
of  abandonment,  as  in  this  case,  and  yet  may  have  failed  for 
many  years  to  make  any  beneficial  use  of  the  water  he  has 
appropriated.  The  question  presented,  therefore,  is  not  one 
of  abandonment,  but  one  of  nonuser  merely,  and,  as  such, 
involves  a  construction  of  section  1411  of  the  Civil  Code. 
That  section,  as  has  been  said,  makes  a  cessation  of  use  by 
the  appropriator  work  a  forfeiture  of  his  right,  and  the  ques- 
tion for  determination  is,  How  long  must  this  nonuser  con- 
tinue before  the  right  lapses? 

Upon  this  point  the  legislature  has  made  no  specific  decla- 
ration, but,  by  analogy,  we  hold  that  a  continuous  nonuser  for 
five  years  will  forfeit  the  right.  The  right  to  use  the  water 
ceasing  at  that  time,  the  rights  of  way  for  ditches  and  the 
like,  which  are  incidental  to  the  primary  right  of  use,  would 
fall  also,  and  the  servient  tenement  would  be  thus  relieved 
from  the  servitude. 

In  this  state  five  years  is  the  period  fixed  by  law  for  the 
ripening  of  an  adverse  possession  into  a  prescriptive  title. 
Five  years  is  also  the  period  declared  by  law  after  which  a 


WOOD  v.  ETIWANDA  WATER  Co.  167 

prescriptive  right  depending  upon  enjoyment  is  lost  for  non- 
user;  and  for  analogous  reasons  we  consider  it  to  be  a  just 
and  proper  measure  of  time  for  the  forfeiture  of  an  appropri- 
ator's  rights  for  a  failure  to  use  the  water  for  a  beneficial 
purpose. 

Considering  the  necessity  of  water  in  the  industrial  affairs 
of  this  state,  it  would  be  a  most  mischievous  perpetuity  which 
would  allow  one  who  has  made  an  appropriation  of  a  stream 
to  retain  indefinitely,  as  against  other  appropriators,  a  right 
to  the  water  therein,  while  failing  to  apply  the  same  to  some 
useful  or  beneficial  purpose.  Though  during  the  suspension 
of  his  use  other  persons  might  temporarily  utilize  the  water  un- 
applied by  him,  yet  no  one  could  afford  to  make  disposition 
for  the  employment  of  the  same,  involving  labor  or  expense 
of  any  considerable,  moment,  when  liable  to  be  deprived  of 
the  element  at  the  pleasure  of  the  appropriator,  and  after  the 
lapse  of  any  period  of  time,  however  great. 

The  failure  of  plaintiffs  to  make  any  beneficial  use  of  the 
water  for  a  period  of  more  than  five  years  next  preceding  the 
commencement  of  the  action,  as  found  by  the  court,  results 
from  what  has  been  said  in  a  forfeiture  of  their  rights  as  ap- 
propriators. 

The  judgment  and  order  are  reversed. 


Abandonment  of  Decayed  Part  of  Flume — Appropriation — 
Advice  of  Counsel. 

F.  W.  WOOD  et  al.,  Appellants,  v.  ETIWANDA  WATER 
COMPANY,  Respondent. 
(147  Cal.  228,  81  Pac.  512.) 

VAN  DYKE,  J.— On  November,  1893,  plaintiffs  commenced 
an  action  in  the  superior  court  of  San  Bernardino  county 
against  the  Etnvanda  Water  Company  and  the  California  Im- 
provement Company  for  the  purpose  of  obtaining  a  perpetual 
injunction  restraining  the  defendant  from  maintaining  a  pipe 
across  the  lands  of  the  plaintiffs,  and  from  diverting  waters 


168  WATER  RIGHTS  AND  IRRIGATION  LAW. 

from  the  East  Canyon,  or  Etiwanda  creek,  through  that  pipe, 
the  plaintiffs  being  the  owners  as  tenants  in  common  of  a 
considerable  tract  of  land,  through  which  said  creek  flowed. 
Upon  the  trial  of  said  action  the  court  found  that  the  stream 
of  water  known  as  East  Canyon  creek  rises  in  the  mountains 
above  the  lands  of  the  plaintiffs,  and  in  its  natural  course 
flows  down  through  said  lands;  that  in  1882  the  Etiwanda 
Water  Company  constructed  and  used  a  flume  in  lieu  of  an 
open  ditch,  which  many  years  before  had  been  used  by  said 
defendant's  grantors  for  the  diversion  of  said  water,  and  that 
said  flume  was  not  an  original  diversion  of  water,  but  was  a 
continuation  of  the  diversion  before  made  by  the  grantors  of 
the  defendant;  that  more  than  twenty  years  before  the  com- 
mencement of  said  action  the  defendant's  grantors  appro- 
priated and  diverted  all  the  water  of  said  Canyon  creek  at 
a  point  near  where  the  said  creek  flows  from  the  canyon,  for 
household  and  domestic  use  and  irrigation  upon  the  lands  then 
owned  and  possessed  by  them,  and  conveyed  said  water  to 
their  said  lands  for  such  use,  and  that  ever  since,  and  down 
to  the  commencement  of  the  said  action,  said  defendant  and 
its  grantors  have  diverted  and  used  said  water  for  said  pur- 
poses, to  the  extent  of  one  hundred  and  twenty-five  inches, 
measured  under  a  four-inch  pressure,  and  all  the  water  so 
diverted  had  been  used  for  said  purposes.  During  all  of  said 
time  said  defendant  and  its  grantors  were,  and  said  defend- 
ant, Etiwanda  Water  Company,  now  is,  the  owner  of  the 
right  so  to  divert  and  use  the  said  water  to  the  extent  afore- 
said. It  is  also  found  that  defendant,  in  June,  1892,  com- 
menced to  lay  pipe  across  the  plaintiffs'  lands,  and  that  said 
pipe  was  substituted  for  said  flume  for  a  portion  of  the  dis- 
tance across  said  lands,  and  was  constructed  and  laid  sub- 
stantially along  the  course  of  the  old  flume,  which  latter  had 
been  wholly  disused,  except  the  first  portion  thereof,  and  that 
said  pipe-line  was  so  constructed  without  the  consent  and 
against  the  wishes  of  the  plaintiffs,  and  was  without  right; 
and  as  a  conclusion  of  law  the  court  found  that  the  plaintiffs 
were  entitled  to  judgment  perpetually  restraining  the  Eti- 
wanda Water  Company,  defendant,  from  maintaining  or  us- 
ing the  pipe-line  described  in  the  pleadings,  and  referred  to 
in  said  findings;  and,  as  a  further  conclusion  of  law,  found 


iWooo  v.  ETIWANDA  WATER  Co.  169 

that  the  defendant,  the  Etiwanda  Water  Company,  was  en- 
titled to  judgment  that  it  is  the  owner  of  the  right  to  maintain 
the  dam  and  flume  described  in  the  pleadings  and  referred  to 
in  said  findings  of  fact,  and  to  divert  the  water  of  East  Can- 
yon creek  to  the  extent  of  one  hundred  and  twenty-five  inches 
measured  under  a  four-inch  pressure. 

The  plaintiffs  in  that  action  appealed  to  this  court  from  the 
portion  of  the  judgment  wherein  it  was  adjudged  that  the 
Etiwanda  Water  Company  was  the  owner  of  the  right  to  main- 
tain the  dam  and  flume  referred  to.  The  defendant,  however, 
acquiesced  in  the  findings  and  decree  in  the  lower  court,  and 
at  once  proceeded  to,  and  did,  remove  the  pipe,  and  thereupon 
restored  the  flume,  as  originally  constructed,  before  the  ap- 
peal was  taken  on  the  part  of  the  plaintiffs.  In  the  opinion 
in  this  court  on  the  appeal,  Wood  v.  Etiwanda,  Water  Co.,  122 
Cal.  160,  54  Pac.  729,  it  is  said:  ''The  defendant,  by  its  fail- 
ure to  appeal,  acquiesced  in  the  finding  and  judgment  that  the 
pipe-line  was  constructed  without  right,  and  that  it  be  per- 
petually enjoined  from  using  it,  a  contingency  that  might 
have  been  anticipated  by  the  defendant  and  the  question  made 
as  to  its  right  to  construct  a  flume  to  take  its  place.  Besides, 
it  might  well  be  questioned  whether  there  is  any  finding  that 
will  support  that  part  of  the  judgment  appealed  from.  The 
court  found  that  the  flume  had  been  used  from  1882  to  1832, 
that  it  was  then  'abandoned'  and  destroyed,  except  a  few  feet 
near  the  dam,  and  unless  it  can  be  said  as  a  conclusion  of 
law  that  the  flume,  having  once  existed,  and  having  been  vol- 
untarily destroyed  and  abandoned,  may  be  rebuilt  and  the 
servitude  upon  plaintiff's  lands  be  recreated  or  renewed  at 
defendant's  will,  there  would  seem  to  be  no  basis  for  the  judg- 
ment appealed  from.  .  .  .  The  question  of  defendant's  right 
to  reconstruct  the  flume  has  been  argued  in  the  briefs,  but 
as  the  question  was  not  raised  upon  the  pleadings,  and  the 
judgment  in  that  regard  being  outside  of  the  issues,  and  ap- 
parently not  litigated  upon  the  trial,  that  part  of  the  judgment 
appealed  from  should  be  reversed,  with  leave  to  both  parties  to 
amend  or  supplement  the  pleadings  as  they  may  be  advised." 

Instead  of  following  the  suggestion  of  this  court  in  re- 
manding the  cause  for  further  proceedings  by  way  of  amend- 
ments, or  supplemental  pleadings,  the  plaintiffs,  in  June, 


170  WATER  RIGHTS  AND  IRRIGATION  LAW. 

1896,  commenced  another  action,  for  the  purpose  of  enjoining 
the  defendant  from  constructing  any  flume  or  other  conduit 
across  the  said  lands  of  plaintiffs,  or  any  portion  thereof,  and 
from  diverting  the  waters  from  said  stream  to  conduct  the 
same  across  the  lands  of  the  plaintiffs. 

The  answer  of  the  defendant,  the  Etiwanda  Water  Com- 
pany, sets  forth  that  in  the  year  1882  it  had  constructed  an 
open  flume,  and  by  means  of  such  flume  and  dam  had  diverted 
the  waters  of  the  creek;  that  said  diversion  had  existed  long 
prior  to  1882,  by  defendant's  grantors  and  predecessors  in 
interest,  and  was  not  a  new  or  original  diversion  by  the  de- 
fendant; that  the  flume  had  been  constructed  and  used  in  lieu 
of  an  open  ditch  which  many  years  before  had  been  used  by 
defendant's  grantors  and  predecessors,  and  that  the  appro- 
priation and  use  of  the  waters  of  the  stream  by  the  defendant 
and  its  grantors  and  predecessors  in  interest  extended  to  and 
included  the  entire  flow  of  the  stream  during  the  irrigation 
season  of  every  year,  and  that  the  flume,  as  so  constructed, 
was  capable  of  carrying  one  hundred  and  twenty-five  inches  of 
water,  measured  under  a  four-inch  pressure;  that  all  the 
wraters  diverted  by  the  defendant  were  actually  used  for  a 
beneficial  purpose  during  all  said  time. 

After  the  commencement  of  this  present  action,  F.  W. 
Wood,  one  of  the  plaintiffs,  died,  and  by  order  of  the  court 
Leona  Wood,  executrix  of  the  will  of  F.  W.  Wood,  deceased, 
was  substituted  in  his  place,  and  a  supplemental  complaint 
filed.  In  the  answer  to  the  supplemental  complaint  it  is  fur- 
ther alleged  on  behalf  of  the  defendant  that  the  use  and  sub- 
stitution of  the  iron  pipe  for  a  portion  of  said  flume  was  a 
temporary  use  and  a  temporary  substitution  only,  and  that 
the  defendant  never  intended  to  abandon,  and  never  did  aban- 
don, the  right  to  maintain  and  use  the  said  flume  or  any  part 
thereof,  as  the  same  had  been  constructed  and  maintained 
and  used  by  it,  both  prior  and  subsequent  to  the  said  tempo- 
rary use  of  the  iron  pipe. 

The  court  finds  substantially  that  the  said  defendant,  after 
constructing  the  flume  in  1882,  as  stated,  had  used  the  same 
at  all  times  openly  and  notoriously  and  under  a  claim  of 
right,  and  adversely  to  the  entire  world,  and  continuously  to 
the  present  time,  and  that  in  the  month  of  June,  1892,  it  had 


WOOD  v.  ETIWANDA  WATER  Co.  171 

replaced  about  twelve  hundred  feet  in  length  of  said  flume 
with  an  iron  pipe  of  sufficient  capacity  to  continuously  carry 
said  one  hundred  and  twenty-five  inches  of  water;  that  said 
iron  pipe  was  constructed  along  the  line  of  said  flume,  so  re- 
placed by  it,  and  was  used  in  connection  with  the  remainder 
of  said  flume  for  the  conduct  of  said  water  continuously  un- 
til during  the  month  of  November,  1896,  at  which  time  said 
iron  pipe  was  taken  up  by  defendant  and  replaced  with  said 
flume  in  the  former  line  thereof,  and  on  the  line  of  said  pipe, 
and  that  it  ever  since  has  been  used  continuously  for  the 
conduct  of  said  one  hundred  and  twenty-five  inches  of  water, 
precisely  as  the  same  was  used  before  said  iron  pipe  was  used ; 
that  the  use  and  substitution  of  said  iron  pipe  for  a  portion 
of  said  flume  was  a  temporary  use  and  a  temporary  substitu- 
tion only,  and  that  defendant  never  intended  to  abandon,  and 
never  did  abandon,  the  right  to  maintain  and  use  said  flume, 
nor  any  part  thereof,  as  the  same  had  been  constructed,  main- 
tained, and  used  by  it,  both  prior  and  subsequent  to  the  said 
temporary  use  of  said  iron  pipe. 

Judgment  was  entered  upon  the  said  findings  in  favor  of 
the  defendant,  from  which  judgment,  and  also  from  the  order 
denying  plaintiff's  motion  for  a  new  trial,  the  appeal  herein 
is  taken. 

In  appellant's  brief  one  of  the  points  made  is  that  the  court 
erred  in  admitting  in  evidence  the  question  of  abandonment 
of  the  flume.  It  will  be  seen,  however,  that  this  court,  on  the 
former  appeal,  held  that  the  question  of  defendant's  right  to 
reconstruct  the  flume  could  not  be  determined  on  the  pleadings 
as  they  then  stood,  and  for  that  reason  the  case  was  remanded 
for  further  proceedings,  upon  amended  or  supplemental  plead- 
ings, as  the  parties  might  be  advised. 

The  very  question  involved  in  the  present  case,  therefore, 
is.  whether  the  defendant  company  had  the  right  to  restore  the 
portion  of  the  flume  replaced  by  the  iron  pipe  after  being  en- 
joined from  using  said  iron  pipe,  and  on  this  issue  the  plead- 
ings in  the  present  action  properly  present  the  case  for 
decision,  and  the  decision  of  the  trial  court,  as  already  stated, 
is  in  favor  of  the  defendant.  The  evidence,  as  well  as  the 
acts  of  the  defendant,  support  the  findings  of  the  court  that 
the  defendant  never  abandoned  the  right  to  convey  and  use 


172  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  water,  as  had  been  its  custom  for  some  twenty  years  prior 
thereto. 

The  abandonment  of  an  old  or  a  dilapidated  flume  is  alto- 
gether different  from  the  abandonment  of  the  right  to  divert 
and  use  water  conveyed  through  such  flume.  The  substantive 
right  is  the  right  of  diversion  and  use  of  the  water ;  the  flume 
is  a  mere  means  of  conveying  the  water.  .  .  . 

In  Vtt  v.  Frey,  106  Cal.  397,  39  Pac.  809,  it  is  said:  "The 
right  which  is  acquired  to  the  use  of  water  by  appropriation 
may  be  lost  by  abandonment.  To  abandon  such  right  is  to 
relinquish  possession  thereof  without  any  present  intention  to 
repossess.  To  constitute  such  abandonment  there  must  be  a 
concurrence  of  act  and  intent,  viz. :  the  act  of  leaving  the 
premises  or  property  vacant,  so  that  it  may  be  appropriated 
by  the  next  comer,  and  the  intention  of  not  returning.  (Jud- 
son  v.  Malloy,  40  Cal.  299 ;  Bell  v.  Bed  Rock  etc.  Co.,  36  Cal. 
214;  Moon  v.  Rollins,  36  Cal.  333,  95  Am.  Dec.  181;  St.  John 
v.  Kidd,  26  Cal.  272;  Richardson  v.  McNulty,  24  Cal.  345; 
Willson  v.  Cleaveland,  30  Cal.  192.)  The  mere  intention  to 
abandon,  if  not  coupled  with  yielding  up  possession  or  a  ces- 
sation of  user,  is  not  sufficient ;  nor  will  the  nonuser  alone 
without  an  intention  to  abandon  be  held  to  amount  to  an 
abandonment.  Abandonment  is  a  question  of  fact  to  be  de- 
termined by  a  jury  or  the  court  sitting  as  such. "... 

All  the  circumstances  surrounding  the  case,  as  well  as  the 
direct  evidence  introduced,  abundantly  support  the  findings, 
and  show  that  it  was  never  the  purpose  or  the  intention  on  the 
part  of  the  defendant  corporation  to  abandon  its  right  to  the 
diversion  and  use  of  the  water  by  means  of  the  flume  should 
the  iron  pipe  not  be  permitted  to  remain. 

The  judgment  and  order  are  affirmed. 


BOWMAN  v.  VIKDIN.  173 


Loan  of  Water. 
BOWMAN  et  al.  v.  VIRDIN  et  al. 

(40  Colo.  247,  90  Pac.  506.) 

MAXWELL,  J. — Plaintiffs  below,  appellees  here,  by  their 
complaint  alleged  that  they  were  the  owners  of  certain  water 
rights  in  adjudicated  priority  No.  8  of  the  waters  of  Kannah 
creek,  water  district  No.  42,  Mesa  county,  Colorado;  that  de- 
fendants below,  appellants  here,  were  the  owners  of  adjudi- 
cated priority  No.  5  of  the  waters  of  said  Kannah  creek ;  that 
both  of  said  priorities  took  their  water  from  Kannah  creek 
through  the  Brown  &  Campion  ditch;  that  the  headgates  of 
the  laterals  of  plaintiffs  are  above  the  headgates  of  the  lat- 
erals of  the  defendants  on  the  line  of  said  Brown  &  Campion 
ditch;  that  pursuant  to  section  3,  page  236,  of  the  laws  of 
1899  (3  Mills'  Ann.  St.  Rev.  Supp.  2273c),  and  by  a  strict 
compliance  with  all  the  requirements  of  said  sections,  the 
owners  of  adjudicated  priority  No.  2  of  the  waters  of  Kannah 
creek  loaned  to  the  plaintiffs,  for  a  limited  time,  thirty  inches 
of  water  of  said  stream  of  adjudicated  priority  No.  2,  to 
be  used  by  the  plaintiffs  in  saving  their  crops  and  orchards; 
that,  for  the  purpose  of  utilizing  the  said  thirty  inches  of 
water  so  loaned  to  them  by  the  owners  of  adjudicated  prior- 
ity No.  2,  the  said  water  was  taken  out  of  the  creek  through 
the  headgate  of  the  Brown  &  Campion  ditch  down  and  through 
said  ditch,  and  along,  and  by,  and  adjacent  to  the  headgate 
and  lateral  through  which  the  defendants  divert  water  for 
irrigation  of  their  lands;  that  defendants,  well  knowing  the 
facts  relating  to  the  loan  of  the  said  thirty  inches  of  water  to 
plaintiffs,  wrongfully,  unlawfully,  and  forcibly,  without  the 
consent  of  the  plaintiffs,  took  and  diverted  the  said  thirty 
inches  of  water  into  the  laterals  of  said  defendants,  and  used 
said  water  for  the  irrigation  of  their  lands,  and  refused  to 
close  the  headgate  of  their  lateral,  or  allowed  plaintiffs  or 
anyone  else  to  do  so,  thereby  wrongfully,  unlawfully  and  for- 
cibly depriving  plaintiffs  of  the  use  of  said  water,  to  the  irre- 
parable damage  and  injury  of  plaintiffs;  and  that  defendants, 
unless  restrained,  threaten  to  and  will  continue  so  to  do.  A 


174  WATER  RIGHTS  AND  IRRIGATION  LAW. 

perpetual  injunction  was  prayed.  Defendants  demurred  to 
the  complaint  upon  the  ground  that  it  did  not  state  facts 
sufficient  to  constitute  a  cause  of  action.  The  demurrer  was 
overruled,  and,  defendants  electing  to  stand  upon  the  demur- 
rer, judgment  was  rendered,  making  the  temporary  injunction 
theretofore  granted  permanent.  Error  is  assigned  upon  over- 
ruling the  demurrer  and  entry  of  judgment. 

It  is  the  content-ion  of  appellants  that  section  3  of  the  act 
of  1899  (Sess.  Laws  1899,  p.  236;  3  Mills'  Ann.  St.  Rev.  Supp., 
sec.  2273c),  is  unconstitutional,  as  being  in  conflict  with  section 
6,  art.  16,  Const.  Colo.  Ft.  Lyon  Canal  Co.  v.  Chew,  33  Colo. 
392,  81  Pac.  37,  disposes  of  this  contention  adversely  to  appel- 
lants, by  placing  a  construction  upon  the  statutes  in  question 
which  permits  an  exchange  or  loan  of  water  under  circum- 
stances and  conditions  which  do  not  injuriously  affect  the 
vested  rights  of  other  appropriators.  At  page  402  of  33  Colo., 
page  40  of  81  Pac.,  Mr.  Justice  Campbell  said:  "Sections  1 
and  2  of  the  act  prohibit  the  change  in  point  of  diversion  un- 
til the  party  desiring  to  make  the  same  has  obtained  an  ad- 
judication of  the  court  that  it  can  lawfully  be  accomplished 
without  impairing  the  vested  rights  of  others;  that  is  to  say, 
the  right  cannot  be  exercised  at  all  until  after  a  decree  there- 
for has  been  obtained  that  vested  rights  are  not  impaired. 
Section  3  seems  to  recognize  a  temporary  exchange  or  loan  of 
water  without  first  obtaining  a  decree.  The  right,  however, 
in  the  latter  case,  if  it  exist  at  all,  as  we  have  already  held, 
is  just  as  much  subject  to  the  qualification  that  the  vested 
rights  of  others  are  not  to  be  impaired,  as  in  the  case  of  an 
attempted  permanent  change  of  the  point  of  diversion;  and, 
when  it  has  been  made,  though  it  may  be  effected  without  first 
obtaining  a  decree  therefor,  it  is  incumbent  upon  the  party 
asserting  rights  under  the  loan  or  exchange,  when  challenged 
by  an  action  in  court,  affirmatively  to  show  that  it  can  be 
exercised  without  interfering  with,  or  impairing,  the  vested 
rights  of  others."  And,  again,  at  page  404  of  33  Colo.,  page 
40  of  81  Pac. :  "If,  as  a  matter  of  fact,  these  loans  were  made 
under  conditions  and  in  circumstances  which  permit  of  ex- 
changes and  loans  of  water  it  is  only  right  and  proper  that 
the  burden  of  establishing  the  same  be  put  upon  the  parties 
thereto.  That  this  is  the  rule  that  should  prevail  seems  only 


CONRAD  v.  ARROWHEAD  HOT  SPRINGS  HOTEL  Co.       175 

fair  and  just.  .  .  .  Such  being  the  law  of  this  state,  when  such 
exchanges  or  loans  are  made,  or  attempted  to  be  made,  they 
ought  not  to  be  permitted,  if  at  all,  until  the  parties  seeking 
their  benefits  have  clearly  established  that  the  alleged  qualified 
right  has  been  exercised  in  such  a  way,  and  at  such  times,  and 
in  such  circumstances,  that  the  vested  rights  of  others  are  not 
injured." 

There  is  no  allegation  in  the  complaint,  nor  any  averment 
to  supply  the  want  of  such  allegation,  to  the  effect  that  the 
alleged  right  of  the  owners  of  priority  No.  2  to  loan  plaintiffs 
thirty  inches  of  water  of  such  priority,  or  that  the  alleged 
right  of  plaintiffs  to  borrow  and  use  such  water  for  the  pur- 
pose set  forth  in  the  complaint,  have  been  or  can  be  exercised 
in  such  way  as  to  not  injuriously  affect  the  vested  rights  of 
defendants  in  priority  No.  5.  Under  the  above  authority  the 
burden  of  establishing  such  facts  resting  upon  plaintiffs,  the  ' 
complaint  should  make  apt  averments  in  that  behalf. 

The  complaint  being  deficient  in  this  regard,  the  court  erred 
in  overruling  the  demurrer  of  defendants,  for  which  error  the 
judgment  must  be  reversed. 

Reversed. 


Riparian  Owner — Subsequent  Appropriates 

F.  W.  CONRAD  et  al.,  Respondents,  v.  THE  ARROWHEAD 
HOT  SPRINGS  HOTEL  COMPANY  et  al.,  Appellants. 

(103  Cal.  399,  37  Pac.  386.) 

SEARLS,  C. — This  action  was  brought  to  abate  a  private 
nuisance,  and  for  a  perpetual  injunction  against  its  continu- 
ance. 

Plaintiffs  had  judgment  granting  them  a  perpetual  injunc- 
tion and  for  nominal  damages.  Defendants  moved  for  a  new 
trial,  which  was  refused. 

Two  separate  appeals  are  taken;  one  from  the  final  judg- 
ment, and  the  other  from  the  order  denying  a  new  trial.  Both 
appeals  are  elucidated  by  the  same  transcript. 

There  is  also  a  separate  appeal  in  the  same  case  (No.  19,193) 
from  an  order  refusing  to  dissolve  a  preliminary  injunction 


176  WATER  RIGHTS  AND  IRRIGATION  LAW. 

issued  in  the  cause,  the  result  of  which  depends  upon  the  de- 
cision of  the  other  appeals,  which  will  be  considered  together. 

Plaintiffs  are  the  owners  of  certain  tracts  of  non-riparian 
lands  in  the  county  of  San  Bernardino,  forming  a  part  of  a 
larger  tract  known  as  the  ' '  Orange  Grove  tract. ' ' 

Defendant,  the  Arrowhead  Hot  Springs  Hotel  Company  (a 
corporation),  is,  and  it  and  its  grantors  have  been  since  1882, 
the  owner  in  fee  of  a  tract  of  land  situate  upon  both  sides  of, 
and  including  the  bed  and  banks  of,  East  Twin  creek,  an  un- 
navigable  stream,  which  lands,  the  court  finds,  "are,  and  from 
time  immemorial  have  been,  riparian  to  said  creek  and  its 
flow." 

There  are  upon  the  lands  of  said  defendant  a  large  number 
of  springs,  hot,  cold,  and  medicinal,  and,  also,  what  are  desig- 
nated as  mud  baths. 

Defendant  has  upon  said  land,  and  for  ten  years  prior  to 
the  commencement  of  this  action  had,  a  hotel  thereon  as  a  re- 
sort for  invalids,  with  bath-houses,  mud  baths,  etc.,  all  of 
which  are  used  for  the  entertainment  of  guests  and  treat- 
ment of  invalids  generally,  whether  suffering  from  rheumatic 
troubles,  diseases  of  the  blood,  or  other  diseases.  During  all 
of  said  ten  years  defendant  has  discharged  from  his  kitchen, 
bath-houses,  hotel,  privies,  etc.,  the  drainage  and  accumulation 
of  filth  and  refuse  matter  therein  accumulating,  by  means  of 
sewers,  pipes,  etc.,  into  certain  ravines  contiguous  thereto, 
from  and  through  which  ravines  it  flows  by  natural  channels 
into  and  down  East  Twin  creek,  and  pollutes  the  waters 
thereof  so  that  they  are  unfit  for  drinking  or  for  any  domestic 
purposes. 

Plaintiffs  have  a  ditch  which  diverts  the  water  from  East 
Twin  creek  about  one-half  mile  below  where  defendant  dis- 
charges its  sewage  into  the  stream,  by  which,  and  a  pipe-line 
connected  therewith,  they  conduct  the  water  of  said  creek  to 
their  land  for  domestic  purposes  and  for  irrigating  their  land. 

Plaintiffs  aver,  and  the  court  finds,  that  they  had  been  using, 
and  had  a  right  for  one  year  before  the  commencement  of  this 
action  to  use,  the  water  of  the  creek  for  irrigation  and  domes- 
tie  purposes  upon  their  land. 

There  is  no  allegation  or  finding  as  to  the  date  of  construc- 
tion of  the  ditch  through  which  plaintiffs  take  the  water  from 


CONRAD  v.  ARROWHEAD  HOT  SPRINGS  HOTEL  Co.       177 

the  creek,  or  the  source  or  origin  or  character  of  their  right 
thereto. 

The  evidence  shows  that  in  1887  John  Hancock  conveyed 
the  land  now  owned  by  plaintiffs  to  certain  grantees,  and  in 
his  deed  of  conveyance  included  "all  the  right,  title,  and  in- 
terest of  John  Hancock,  the  party  of  the  first  part  therein,  in 
and  to  the  waters  of  East  Twin  creek,  and  its  tributaries  ac- 
quired either  by  appropriation  or  otherwise,  and  then  owned 
or  held  by  him  as  riparian  proprietor  of  the  lands  aforesaid, 
or  otherwise.  Also  ditches  held  by  him  or  to  which  he  was 
entitled,  and  a  right  of  way  for  said  ditches  and  such  pipe- 
line as  the  grantees  desired  to  construct  over  a  tract  of  land 
held  by  the  grantor  on  East  Twin  creek  as  a  timber  culture 
claim,"  reserving  to  the  grantor  five  inches  of  water  to  be 
taken  from  the  ditch,  which  it  recites  was  constructed  in  1885, 
and  is,  say,  one  mile  in  length.  Plaintiffs  have  constructed 
a  pipe-line  from  the  end  of  the  ditch  to  their  several  lots  of 
land  for  a  distance  of,  say,  one-half  mile. 

The  ditch  through  which  the  water  furnished  to  plaintiffs' 
land  is  diverted  and  conducted  thereto  taps  East  Twin  creek, 
so  far  as  can  be  determined  from  the  record,  about  one  mile 
above  the  "Orange  Grove  tract"  of  land.  Defendants,  in 
their  answer,  plead  a  prescriptive  right  to  the  use  of  East 
Twin  creek,  as  a  place  of  deposit  for  the  refuse  from  their 
hotel,  baths,  etc. 

There  was  evidence  to  show  that  until  a  period  within  four 
years  next  before  July  19,  1892,  the  land  of  plaintiffs  was 
wholly  unoccupied  and  vacant,  not  settled  upon  or  improved, 
and  that  the  pipe  system  had  not  at  the  last-mentioned  date 
been  in  use  more  than  two  years. 

The  court  found  against  the  prescriptive  right  of  the  defend- 
ants. 

Judging  from  the  record,  and  the  conclusion  is  drawn  that 
the  rights  of  the  plaintiffs  are  those  of  the  ordinary  loaators 
who  divert  water  for  a  useful  purpose  from  a  stream  in  this 
state.  In  other  words,  they  are  appropriators.  The  defend- 
ants, as  riparian  proprietors  upon  the  same  stream,  have  a 
right  thereto  prior  in  time,  ar,d  as  to  the  acts  complained  of 
are  prior  in  user  to  any  rights  of  plaintiffs.  As  against  other 
13 


178  WATER  RIGHTS  AND  IRRIGATION  LAW. 

riparian  owners  below  them  on  the  same  stream,  defendants 
have  no  right  to  pollute  the  water  to  the  material  injury  of 
the  former. 

Locators  and  appropriators  of  the  waters  of  a  stream  have 
no  rights  antecedent  to  the  date  of  their  location.  If  others 
have,  prior  to  their  location,  decreased  the  quantity  of  the 
water  flowing  in  such  stream,  or  caused  a  deterioration  of  its 
quality,  the  subsequent  locator  cannot  complain. 

Familiar  examples  of  the  application  of  this  rule  as  between 
appropriators  are  of  frequent  occurrence  in  the  mining  re- 
gions of  this  state,  where  water  is  diverted  from  flowing 
streams  upon  which  mining  has  destroyed  the  purity  of  the 
water.  In  such  cases  the  appropriator  takes  the  water  with 
his  eyes  open — takes  it  as  he  finds  it,  and  as  to  him  the  like 
continued  deterioration  is  damnum  absque  injuria. 

Drainage  and  the  discharge  of  the  sewage  from  the  hotel 
of  the  defendants  is  shown  by  the  evidence  to  have  been  nec- 
essary in  the  interest  of  sanitary  conditions,  and  to  have  been 
for  ten  years  accomplished  by  the  only  feasible  plan  of  dis- 
charging into  the  ravines  contiguous  to  and  upon  their  own 
premises. 

This  was  not,  nor  was  its  continuance  as  against  subseqeunt 
locators  and  appropriators  of  the  water  of  the  stream,  a  wrong- 
ful act. 

"Every  person  who  constructs  a  drain  or  cesspool  upon  his 
own  premises  and  uses  it  for  his  own  purposes,  is  bound  to 
keep  the  filth  collected  there  from  becoming  a  nuisance  to  his 
neighbors."  (Wood  on  Nuisances,  3d  ed.,  sec.  1140.) 

This  doctrine  is  well  settled,  and  applies  as  between  parties 
who  have  equal  rights  to  the  enjoyment  of  their  own  property, 
and  to  be  protected  from  injury  arising'  from  the  undue  uje 
by  their  neighbors  of  their  property. 

In  the  case  of  appropriators  of  running  wrater  there  is  no 
mutuality  of  right,  their  titles  or  rights  are  not  coextensive  as 
to  time,  or  equal  in  rank. 

The  second  appropriator  simply  takes  the  residuum  in  quan- 
tity, subject  to  the  changed  conditions  existing  by  reason  of 
the  prior  user.  If  the  water  of  East  Twin  creek  was  so  con- 
taminated by  the  acts  of  defendants  as  to  be  detrimental  to 


VERNON  IRRIGATION  Co.  v.  CITY  OF  Los  ANGELES.      179 

the  public  or  to  individuals  living  upon  the  stream  below,  a 
very  different  question  would  be  presented. 

But,  as  an  individual  who  should  collect  the  refuse  from  a 
slaughter-yard  and  haul  it  to  his  home  would  not  be  heard 
to  complain  that  the  odor  constituted  a  nuisance,  so  the  locat- 
ors of  this  ditch,  who  have  diverted  the  water  of  the  stream 
to  their  homes  a  mile  or  more  away,  cannot  be  heard  to  com- 
plain that  the  water  continues  after  their  diversion,  as  it 
was  before,  noxious  to  the  senses,  and  unfit  for  domestic 
use. 

Two  results  follow  from  the  position  assumed: 

1.  The  finding  of  the  court  that  "the  defendant  corpora- 
tion has  not  any  right,  and  at  the  time  this  action  was  com- 
menced had  not  acquired  any  right,  to  drain  or  sewer  its 
said    premises    by    conducting    its    sewage    matter    accumu- 
lating on  said  premises,  from  any  source  or  cause,  into  East 
Twin  creek,"  is  contrary  to  the  evidence. 

2.  The  conclusions  of  law  and  the  judgment  are  unsup- 
ported by  the  findings. 

The  judgment  and  the  order  denying  a  new  trial,  and 
each  of  them,  should  be  reversed,  and  a  new  trial  had. 


s 


Pueblo  Rights  —  Appropriation  —  Injunction  —  Riparian 


Rights. 


THE   VERNON  IRRIGATION  COMPANY,   Appellant,  v. 

THE  CITY  OF  LOS  ANGELES  et  al.,  Respondents. 

(106  Oal.  237,  39  Pac.  762.) 

THE  COURT.  —  When  this  case  was  originally  submitted 
for  decision  an  opinion  was  prepared  by  Mr.  Commissioner 
Temple,  which  is  now  adopted  by  the  court: 

"Plaintiff,  a  corporation,  begins  this  suit,  averring  that 
it  is  the  owner  of  a  tract  of  land  which  is  riparian  to 
Los  Angeles  river,  to  enjoin  defendants  from  diverting 
water. 


180  WATER  RIGHTS  AND  IRRIGATION  LAW. 

"Plaintiff  avers  that  the  flow  of  water  over  its  natural 
bed  renders  its  lands  fertile  and  valuable,  and  that  it  is 
entitled  to  have  the  waters  flow  as  they  have  been  accus- 
tomed to  flow. 

"That  defendants  claim  an  interest  in  the  water  adverse 
to  plaintiff;  that  the  claims  of  defendants  Ames  and  James 
are  wholly  without  right,  and  the  claim  of  the  city  of  Los 
Angeles  is  without  right,  except  that  the  city  has  the  right 
to  divert  and  use  a  certain  quantity,  which  it  has  been 
using,  for  municipal  purposes  and  distributing  to  its  inhab- 
itants, which  does  not  exceed  three  hundred  inches,  miner's 
measurement.  That  the  city  claims  not  only  the  right  to 
divert  the  water  for  said  purposes,  but  to  divert  water  to 
sell  to  the  owners  of  nonriparian  lands  outside  the  city  for 
profit,  and  is  diverting  large  quantities  of  water,  and  is 
conducting  it  beyond  the  city  limits  and  selling  it  to  owners 
of  nonriparian  lands. 

"That  the  city  is  preparing  to  enlarge  its  ditches  so  as 
to  divert  from  the  river  all  the  water  remaining  therein, 
for  the  express  and  sole  purposes  of  selling  the  same  outside 
the  city  limits,  and  will  do  so  unless  restrained.  That  de- 
fendants Ames  and  James  threaten  to  and  will,  unless 
restrained,  divert  from  the  stream  all  the  water  which  the 
city  permits  to  flow  past  the  city.  Plaintiff's  riparian  lands 
are  below  the  city  and  the  lands  of  Ames  and  James. 

"As  a  second  cause  of  action  it  is  shown  that  plaintiff 
is  the  owner  of  a  water  ditch  and  owns  a  water  right,  ac- 
quired by  appropriation,  to  divert  from  Los  Angeles  river 
two  thousand  one  hundred  inches  of  water,  the  point  of 
diversion  being  its  said  riparian  lands. 

"As  in  the  first  count,  it  is  averred  that  defendants  claim 
rights  adverse  to  plaintiff,  and  threaten  to,  and  unless  re- 
strained will,  divert  all  the  water  of  the  river,  thus  depriv- 
ing plaintiff  of  the  water  right  it  has  acquired  by  appropria- 
tion. 

"Therefore,  plaintiff  prays  that:  1.  Defendants  be  re- 
quired to  state  the  extent  and  nature  of  their  claims;  2. 
That  Ames  and  James  be  decreed  to  have  no  rights  to  any 
water,  and  be  perpetually  enjoined  from  diverting  any; 
3,  That  it  be  adjudged  that  the  city  has  no  right  to  any 


VERNON  IRRIGATION  Co.  v.  CITY  OF  Los  ANGELES.      181 

water  except  for  municipal  uses  and  to  distribute  to  its  in- 
habitants; that  the  amount  required  for  such  uses  be  ascer- 
tained by  the  court,  and  the  city  be  enjoined  from  diverting 
from  the  river  any  larger  amount. 

"The  Los  Angeles  river  flows  from  the  north,  through 
the  city  of  Los  Angeles,  past  the  lands  of  Ames,  which  ad- 
join the  city  on  the  south,  to  plaintiff's  land,  which  adjoins 
Ames'  land. 

"Ames  answered,  denying  plaintiff's  rights  and  that  he 
had  interfered  with  any  rights  of  plaintiff  to  the  water, 
and,  in  substance,  averring  that  the  water  in  controversy 
is  developed  water,  which  he  was  not  bound  to  permit  to 
flow  over  his  land  to  plaintiff,  and  also  setting  up  a  right 
to  the  water  in  himself  acquired  by  appropriation. 

"The  city  denies  the  rights  of  plaintiff  and  claims  the 
right  to  take  all  the  water  of  the  river:  1.  As  successor  to 
the  pueblo  of  Los  Angeles,  which  it  contends  owned  all  the 
water  in  the  river;  2.  As  an  appropriator  of  the  water, 
claiming  that  it  has  been  in  the  undisturbed  and  undisputed 
use  of  it,  under  claim  of  right,  for  fifty  years. 

"It  is  also  contended  that,  under  the  laws  of  Mexico,  the 
pueblo  had  the  power  to  distribute  the  water  for  the  bene- 
fit of  all  the  lands  then  claimed  by  the  pueblo,  and  that 
the  city  has  succeeded  to  that  right.  That  the  outside  lands 
to  which  it  is  conducting  water  were  within  the  limits  for- 
merly claimed  by  the  pueblo. 

"The  findings  are  quite  voluminous,  and  include  a  find- 
ing to  the  effect  that  the  city  and  its  predecessor,  the 
pueblo,  have,  since  1788,  claimed  the  absolute  ownership 
of  all  the  waters  usually  flowing  in  the  river  as  a  supply 
for  the  city  and  pueblo  and  the  inhabitants  thereof  for  any 
and  every  purpose,  and,  under  and  by  virtue  of  said  claim, 
has  during  all  said  time  continuously  controlled  the  use, 
diversion,  and  disposition  thereof;  and  has  delivered  the 
surplus  not  needed  in  the  city  to  be  used  outside  the  city 
limits;  and  for  more  than  thirty  years  the  effect  of  such 
diversion  has  been  to  take  all  the  water  flowing  in  the  stream 
from  June  until  the  fall  rains,  except  in  a  few  years  of  un- 
usual rainfall. 


182  WATER  RIGHTS  AND  IRRIGATION  LAW. 

"That  the  city  is  the  absolute  owner  of  all  the  water  nat- 
urally flowing  in  the  river,  and  holds  the  same  for  the  use 
of  its  inhabitants,  and  for  all  other  municipal  purposes. 
The  volume  of  water  varies  from  year  to  year,  and  has  some- 
times been  insufficient  for  such  uses. 

"The  city  contains  at  least  sixty  thousand  inhabitants, 
and  the  population  is  rapidly  increasing,  as  are  also  the 
necessities  of  the  city  and  inhabitants  for  water. 

"That  bordering  on  the  city,  but  without  the  municipal 
limits,  is  a  large  and  valuable  tract  of  suburban  lands,  con- 
taining a  large  population,  with  orchards,  vineyards,  and 
other  plants,  which  use  water  for  irrigation,  and  which  from 
time  immemorial  have  been  supplied  from  the  city  water- 
works, which  water  is  needed  to  keep  the  plants  alive;  that 
there  is  no  other  source  from  which  water  can  be  obtained 
for  this  territory,  and  if  it  cannot  be  supplied,  the  loss  will 
be  great  and  irreparable. 

"It  is  also  found  that  all  the  water  of  the  river  is  nec- 
essary for  the  city  and  its  inhabitants,  and  for  the  irriga- 
tion of  the  lands  in  the  city  and  bordering  thereon,  and 
will  probably  be  insufficient  for  use  in  the  city  in  a  short 
time,  and  'the  same  is  not  an  unreasonably  large  supply  for 
the  city  in  the  conditions  now  existing  as  aforesaid.' 

"That  although  there  has  usually  been  some  water  in 
the  dry  seasons  flowing  past  the  city  to  plaintiff's  land,  the 
city  has  always  claimed  the  right  to  take  it,  and  has  taken 
it  when  desirable. 

"That  in  1889,  1890,  and  1891,  the  city  caused  certain 
levees  to  be  made,  which  raised  to  the  surface  water  which 
theretofore  had  percolated  through  and  under  the  sands 
composing  the  river-bed,  and  since  that  time  the  flow  in 
the  stream  has  increased.  That  in  1893  the  city  made  prep- 
arations to  divert  this  increased  flow,  intending  to  sell  the 
same  to  parties  outside  the  city  limits,  until  required  for 
the  use  of  the  city  or  the  inhabitants  thereof.  That  the 
amount  required  for  such  use  varies  daily,  and  cannot  be 
exactly  estimated. 

"It  is  also  found  that  plaintiff  is  a  riparian  owner,  and 
has  constructed  a  dam  and  a  ditch  for  diverting  water,  as 
averred  in  the  complaint,  but  has  acquired  no  right  to  any 


VEBNON  IRRIGATION  Co.  v.  CITY  OP  Los  ANGELES.      183 

water  by  a  compliance  with  the  provisions  of  the  Civil  Code 
in  regard  to  appropriation  by  the  notice  and  record  re- 
quired, but  has  actually  diverted  some  of  the  surplus  water 
which  the  city  permits  to  flow  past  when  not  required  or 
desired  by  it.  The  greatest  quantity  which  it  has  ever  ap- 
propriated to  any  useful  purpose  is  five  hundred  inches. 

"Plaintiff's  point  of  diversion  is,  apparently,  at  or  near 
the  upper  line  of  its  riparian  lands.  No  portion  of  the 
water  which  it  proposes  to  divert  from  the  stream  is  to  be 
used  on  its  own  land.  There  is  no  evidence  or  finding  that 
its  lands  are  susceptible  of  cultivation,  or  can  be  made  pro- 
ductive, or  that  plaintiff  is  or  can  be  injured  as  to  its 
riparian  lands,  though  deprived  of  all  the  water  flowing  in 
the  stream.  Since,  therefore,  plaintiff's  riparian  lands 
would  not  be  injured  by  the  divergence  of  the  water  at  a 
point  in  the  river  above  its  lands,  and  especially  since  the 
injunction,  if  issued,  would  not  have  the  effect  to  cause  the 
water  to  flow  over  or  along  its  riparian  land  as  it  was  ac- 
customed to  flow,  plaintiff  is  not  entitled  to  an  injunction 
to  protect  its  riparian  rights.  (See  Modoc  Land  &  Live- 
stock Co.  v.  Booth,  102  Cal.  151,  36  Pac.  431.) 

"The  actual  diversion  by  plaintiff  of  five  hundred  inches 
of  water  was  made  while  the  city  was  actually  diverting  the 
stream  as  it  had  been  doing  for  many  years,  claiming  the 
right  to  take  it  all,  and  occasionally  actually  doing  so. 
Again,  it  must  be  understood  that  the  conditions  discussed 
mainly  apply  to  the  dry  season — from  June  until  fall  rains. 
At  other  times  there  is  an  abundance  of  water  for  all  parties 
and  for  all  purposes.  Neither  the  evidence  nor  findings 
show  when  the  plaintiff  was  able  to  take  and  sell  five  hun- 
dred inches  of  water.  Was  it  during  the  dry  season  or  when 
there  was  an  abundance?  Was  it  only  when  the  defendants 
permitted  the  water  to  flow  temporarily,  while,  for  some 
reason,  the  water  was  not  required?  The  needs  of  the  city 
fluctuate  daily.  So,  it  seems,  did  the  quantity  flowing  in 
the  stream  below  the  city.  For  how  long  a  time  plaintiff 
was  able  to  sell  five  hundred  inches  of  water  is  not  shown. 
It  does  appear  that  sometimes  larger  quantities  passed  into 
its  ditches.  But  that,  of  itself,  does  not  constitute  an  ap- 
propriation. It  was  not  appropriated  to  a  useful  purpose. 


184  WATER  RIGHTS  AND  IRRIGATION  LAW. 

"This  uncertain  and,  perhaps,  permissive  use  of  water 
is  not  sufficient  to  prove  a  right  as  against  the  defendants. 
But  the  plaintiff  not  only  seeks  an  injunction,  but  asks  to 
have  its  title  quieted  as  against  defendants,  and  its  claim 
to  the  water,  both  as  riparian  owner  and  as  an  appropriator, 
determined.  Counsel  concede  the  claim  of  the  city  to  the 
amount  required  and  now  actually  used  by  the  city,  either 
for  municipal  purposes  or  for  the  inhabitants.  This  con- 
cession seems  to  be  founded  upon  the  idea  that  the  city 
has  acquired  such  right  as  it  has  by  appropriation.  Coun- 
sel, however,  contend  that  the  city  has  no  power  to  appro- 
priate water  to  sell  to  outside  consumers  for  a  profit,  and 
that  it  has  acquired  no  rights  by  these  acts  of  its  officers, 
which  are  wholly  ultra  vires.  Unauthorized  acts  of  its  offi- 
cers are  not  the  acts  of  the  municipality. 

"As  applied  to  this  case,  I  am  inclined  to  think  this  posi- 
tion must  be  sustained.  It  is  not  the  ordinary  case  in  which 
property  has  been  acquired,  by  a  corporation,  through  a 
transaction  which  was  ultra  vires  as  to  the  corporation.  In 
such  case  it  may  be  that  the  title  of  the  corporation  could 
only  be  called  in  question  by  the  state.  Here  the  title,  if 
any,  is  gained  through  a  continuous  use  which  is  forbidden, 
and  the  corporation  cannot  hold  or  use  the  property  with- 
out the  continued  violation  of  its  charter.  It  involves  the 
continuous  exercise  of  powers  with  which  the  corporation 
is  not  vested.  It  is  not  authorized  to  carry  on  the  business 
of  selling  water  to  outside  parties,  and  its  officers  are  there- 
fore not  empowered  to  appropriate  water  for  that  purpose. 

"But  the  city  claims  to  have  title  to  all  the  water  de- 
rived from  the  Mexican  pueblo,  of  which  it  is  the  successor. 
It  becomes  necessary,  therefore,  to  examine  the  nature  of 
the  right  which  the  pueblo  had  to  the  water  of  the  river 
under  the  Spanish  and  Mexican  laws. 

"It  is  not  easy  for  one  accustomed  to  common-law  terms 
and  ideas,  and  particularly  to  the  system  adopted  by  the 
United  States  for  the  settlement  of  vacant  territories,  to 
comprehend  the  Spanish  and  Mexican  systems,  or  to  esti- 
mate properly  the  nature  of  the  right  which  the  Mexican 
pueblos  had  to  their  land  and  waters.  The  laws,  ordinances, 
and  regulations  of  Spain  and  Mexico  frequently  seem  to 


VEENON  IRRIGATION  Co.  v.  CITY  OP  Los  ANGELES.      185 

us  at  once  oracular  and  vague.  The  trouble  is,  largely,  that 
they  were  addressed  to  a  people  of  very  different  habits  of 
life  and  thought,  and  who  were  familiar  with  the  system, 
of  which  they  constituted  a  part.  This  system  is  strange  to 
us;  and  we  are  thoroughly  indoctrinated  with  the  ideas 
arising  from  a  very  different  system.  The  governmental 
modes  differed  so  widely  as  to  create  in  the  people  different 
necessities  and  habits  of  life.  Some  it  may  be  interesting  and 
profitable  to  notice. 

"1.  Our  plan  has  been  to  encourage  settlement  of  the 
country  by  selling  land  in  small  tracts,  at  a  minimum  price. 
When  so  settled,  villages,  cities,  and  towns  have  grown  up 
as  required  to  supply  the  wants  of  the  settlers.  They  have 
been  called  into  existence  by  the  settlements,  but,  in  the 
beginning,  have  not  contributed  much  to  cause  the  country 
to  be  settled. 

"The  Spanish  system  was  the  opposite.  They  founded 
or  encouraged  the  formation  of  villages  which,  by  affording 
protection  as  well  as  educational  and  religious  privileges, 
would  encourage  settlement  of  the  neighboring  country. 

"2.  These  pueblos  differed  from  our  municipalities  in 
many  respects.  They  had  no  charters,  and  seem  always  to 
have  been  subject  to  the  control  and  supervision  of  superior 
officers,  and  this  control  seems  to  have  been  complete  and 
constant.  They  could  suspend,  restrict,  or  enlarge  the 
powers  of  the  officers  of  the  pueblo;  and  yet  the  pueblos, 
to  an  extent  and  in  a  mode  which  is  strange  to  us,  consti- 
tuted convenient  instrumentalities  for  the  government  of 
the  neighboring  country.  Their  jurisdiction,  subject  always 
to  the  supervision  of  higher  officers,  often  extended  over 
large  territories.  (Hart  v.  Burnett,  15  Cal.  531.) 

"No  grants  of  land  were  made  to  them,  but  as  soon  as 
organized  they  became  entitled  to  have  certain  lands  set 
apart  to  them  for  the  use  of  the  pueblo  and  its  inhabitants. 
(Stevenson  v.  Bennett,  35  Cal.  432 ;  B row ns vi Ue  v.  Cavazos, 
100  U.  S.  138,  25  L.  ed.  574.) 

"Our  courts  have  determined  that  the  successors  of  these 
pueblos  held  the  pueblo  lands  in  trust  for  the  inhabitants, 
and  that  the  legislature  can  control  the  execution  of  this 
trust;  and  the  United  States,  in  accordance  with  the  deci- 


186  WATER  RIGHTS  AND  IRRIGATION  LAW. 

sions,  confirmed  the  lands  to  the  successors  of  the  pueblos. 
Whether,  under  the  Mexican  system,  any  title  was  vested  in 
the  pueblos,  or  the  title  remained  in  the  nation  with  power 
in  the  ayuntamientos  to  administer  the  properties,  is  now 
immaterial.  In  either  event,  the  mode  adopted  was  a  proper 
mode  to  preserve  the  equity  which  it  is  agreed  the  pueblos 
had  in  the  lands  set  aside  and  devoted  to  the  use  of  the 
pueblo. 

"3.  Perhaps  the  most  important  respect  in  which  the 
pueblos  and  the  habits  of  the  inhabitants  differed  from  our 
municipalities  and  the  habits  of  our  people,  is  found  in  the 
extent  to  which  the  individual  wants  were  supplied  from 
public  or  common  lands.  In  this  respect  the  difference  is 
most  startling.  Our  practice  is  to  reduce  everything  to 
private  ownership  from  which  a  profit  can  be  made;  and, 
of  course,  the  more  essential  it  is  to  the  members  of  the 
community,  the  more  profit  can  be  made  from  it.  The  rule 
of  the  pueblo  was  almost  the  reverse  of  this.  So  far  as 
communal  ownership  would  answer  the  purposes  of  the  com- 
munity it  was  preferred.  As  water  was  one  of  the  things 
thus  held,  we  may  understand  better  the  nature  of  the  right 
which  the  pueblos  had  to  it  by  considering  other  properties 
so  held. 

"Many  Spanish  and  Mexican  documents  were  put  in  evi- 
dence on  the  trial  of  the  case,  and  their  substance  is  set 
out  in  the  statement.  The  counsel  for  the  city  has  also 
compiled  a  great  deal  of  Spanish  and  Mexican  law  on  the 
subject.  I  draw  from  these  sources: 

"1.  There  were  the  monies,  or  woodlands,  from  which 
the  inhabitants  could  get  firewood.  A  quotation  is  made 
from  Alveres,  volume  2,  page  12:  'In  the  law  of  Castile  we 
meet  many  regulations  concerning  the  woodlands  and 
bounds  (terminos)  of  cities  and  villas  in  addition  to  the 
very  great  utility  which  results  from  their  preservation, 
since  from  them  was  to  be  drawn  the  timber  necessary  as 
well  for  the  construction  of  ships  as  for  firewood.  With 
this  object  it  is  commanded  that  the  trees  shall  not  be  cut 
from  the  foot,  so  that  they  may  grow  up  again,  and  that 
the  open  fields  shall  serve  for  common  pasture  of  the  cattle. 
That  in  the  bounds  of  villas  and  places  shall  be  planted 


VERNON  IRRIGATION  Co.  v.  CITY  OF  Los  ANGELES.      187 

woods  and  pinones,  where  there  may  be  better  pasturage 
and  shelter  for  cattle,  and  supplies  of  wood  and  timber  to 
them,  and  that  the  inhabitants  may  avail  themselves  of  all.' 
They  were  common  to  all  the  inhabitants. 

"2.  The  dehesas.  This  was  a  tract  of  land  inclosed  where 
all  the  laboring  cattle  of  the  neighborhood  might  be  put. 

"3.  Fuentes.  These  were  springs  of  water  appropriated 
to  the  supply  of  the  town. 

"4.  Ejidos.  These  were  commons  surrounding  the  town; 
in  front  of  the  gates;  they  wrere  kept  open;  not  cultivated. 
Here  the  people  thrashed  their  grain  or  resorted  for  recrea- 
tion; 

"5.  Prados — fields. 

"6.  Pastos — pastures. 

"7.  Aguas — waters. 

"8.  Salinas — salt  springs. 

"9.  Abreveduras — places   for  watering   cattle. 

"Valdios — terminos  not  devoted  to  special  use. 

"All  the  inhabitants,  under  regulations  designed  to  secure 
the  utility  of  the  lands  and  secure  equality,  could  use  all 
these  lands. 

"Then  there  were  the  lands  devoted  to  churches  and  the 
propios.  These  were  generally  the  lots  fronting  on  the 
plaza,  and  were  rented  for  stores,  shops,  etc.  The  rents 
were  for  the  use  of  the  pueblo.  Among  them  were  the 
alhondijas,  a  house  set  apart  for  strangers  who  came  there 
to  trade. 

"I  do  not  understand  that  these  properties  were  com- 
mons in  the  common-law  sense.  They  were  communal  prop- 
erty, subject  to  be  administered  by  the  pueblo  authorities. 
The  public  could  be  dispossessed  and  the  character  of  the 
lands  changed.  They  might  be  sold  or  converted  into 
solares  or  suertes,  which  could  be  reduced  to  private  owner- 
ship. They  were  not  dedicated  to  the  public. 

"Now,  the  waters  of  all  rivers  were,  under  the  Spanish 
and  Mexican  rule,  public  property,  to  be  administered  and 
distributed  for  the  use  of  the  inhabitants.  Apparently  this 
was  sometimes  done  by  the  pueblo  authorities  outside  the 
pueblo  lands.  It  must  be  remembered  that  towns  and  vil- 
lages were  greatly  favored  under  the  Mexican  system;  that 


188  WATER  RIGHTS  AND  IRRIGATION  LAW. 

to  establish  them  was  the  mode  adopted  for  the  settlement 
of  the  country.  Contractors  (capitulantes]  were  rewarded 
for  organizing  them.  The  ordinances  of  the  king  of  Spain 
and  the  provisions  of  the  government  of  Mexico  in  regard 
to  them  direct  that  they  be  located  where  water  will  be  con- 
venient. The  organization  of  the  pueblo  of  Los  Angeles 
itself — to  be  hereafter  referred  to — will  show  the  solicitude  of 
the  government  in  regard  to  this  matter.  Since  the  water  be- 
longed to  the  nation,  and  could  not  be  acquired  from  it  by 
condemnation,  it  would  seem  to  follow,  as  a  matter  of 
necessity,  that  when  the  pueblo  was  organized  under  the 
laws,  a  sufficiency  of  this  water  for  the  pueblo  was  appropri- 
ated to  it.  The  country  was  arid.  The  population  was  at 
first  almost  wholly  agricultural,  and  we  have  seen,  the 
waters  were  held  by  the  pueblo,  subject  to  the  duty  of  dis- 
tributing the  same  in  the  public  interest. 

"Nor  do  I  think  this  was  a  mere  political  power  which 
could  be  revoked  at  any  time,  so  as  to  deprive  the  settlers 
who  had  been  induced  to  become  inhabitants  of  the  pueblo 
of  it.  They  had  the  same  kind  of  right  with  reference  to 
it  which  they  had  to  the  lands.  Both  were  held  as  com- 
munal property,  for  the  benefit  of  the  inhabitants,  and  as 
an  inducement  to  attract  settlers. 

"This  view  was  adopted  by  this  court  in  Lux  v.  Haggin, 
69  Cal.  255.  The  question  there  was  whether,  under  Mexi- 
can or  Spanish  law,  the  water  of  rivers  was  dedicated  to 
the  public  in  such  sense  that  the  people  could  not  be  de- 
prived of  the  common  use.  It  was  said  that  pueblos  ac- 
quired a  species  of  property  in  the  water  of  streams  within 
their  boundaries — a  right  which  was  inconsistent  with  such 
supposed  dedication.  They  had  title  to  such  waters,  subject 
to  the  public  trust  of  continuously  distributing  the  same  in 
just  proportion.  After  citing  authorities  in  support  of  the 
proposition  the  court  proceeds:  'From  the  foregoing,  it 
appears  that  the  riparian  proprietor  could  not  appropriate 
water  in  such  manner  as  should  interfere  with  the  common 
use  of  destiny  which  a  pueblo  on  a  stream  should  have 
given  to  the  waters,  and  semble  that  the  pueblos  had  prefer- 
ence of  prior  right  to  consume  the  waters,  even  as  against 
the  upper  riparian  proprietor.  The  common  use,  here  spoken 


VERNON  IRRIGATION  Co.  v.  CITY  OP  Los  ANGELES.      189 

of,  is  the  use  for  the  benefit  of  the  community  or  the  inhabi- 
tants of  the  pueblo.' 

"This  view,  I  think,  finds  support  in  the  history  of  the 
pueblo  of  Los  Angeles.  In  1779  it  was  determined  to  found 
a  pueblo  called  Reyna  de  Los  Angeles,  settling  it  with  sol- 
diers and  families  told  of?  from  garrisons;  and  the  location 
was  selected  with  a  view  to  land  and  water  for  cultivation. 
In  1781  Don  Phillipe  de  Neve,  governor,  issued  a  decree 
providing  for  the  founding  of  the  pueblo  in  the  immediate 
vicinity  of  the  river  Porcuncula;  all  the  land  capable  of 
irrigation  should  be  carefully  examined,  and  a  point  selected 
for  the  erection  of  a  dam,  which  would  insure  the  distribu- 
tion of  the  water  to  the  greater  portion  of  the  lands,  and  the 
site  of  the  town  should  be  as  near  the  river  as  possible. 

"When  we  remember  that  these  pioneers  were  really 
farmers  and  stock-raisers,  and  the  irrigation  was  a  necessity, 
this  order  with  the  instructions  is  very  significant. 

"There  is  also  an  order  made  by  Don  Pedro  Fages,  gover- 
nor of  the  peninsula  of  California,  August  14,  1786,  for  the 
distribution  of  lands  to  the  settlers  of  Los  Angeles.  It  com- 
missions the  Ensign  Don  Jose  Arguello  to  proceed  to  Los 
Angeles  and  give  formal  possession,  directing  him  to  clearly 
define  what  are  public  domains,  viz.,  water,  pasture,  wood, 
etc. 

"Arguello  reported  his  compliance  September  5,  1786, 
showing  that  he  had  confirmed  to  each  settler  his  lot,  and 
had  measured  the  lands  still  unassigned  and  reserved  to  the 
crown,  assigning  them  for  the  common  use  of  the  settlers 
for  pasture,  for  keeping  stock,  with  a  common  right  in  all 
the  waters,  wood,  and  timber. 

"It  also  appears  that  in  1810  complaints  were  made  to 
the  commandante  that  the  priests  of  San  Fernando  had  di- 
verted the  water  on  the  Cahuenga  ranch  to  the  injury  of  the 
pueblo.  The  controversy  was  settled,  the  priests  acknowledg- 
ing the  superior  right  of  the  pueblo. 

"Counsel  have  furnished  me  with  translations  of  numer- 
ous ordinances,  laws,  rules,  and  regulations  of  Spain  and 
Mexico  relating  to  this  subject.  After  perusing  them  I  am 
satisfied  with  the  conclusion  reached  in  Lux  v.  Hoggin,  supra, 
that  pueblos  had  a  right  to  the  water  which  had  been  appro- 


190  WATER  RIGHTS  AND  IRRIGATION  LAW. 

priated  to  the  use  of  the  inhabitants  similar  to  that  which 
it  had  in  the  pueblo  lands,  and  that  the  right  of  its  successor, 
the  city,  to  the  water,  for  its  inhabitants  and  for  municipal 
purposes,  is  superior  to  the  rights  of  plaintiff  as  a  riparian 
owner. 

"The  question  recurs,  Has  the  city  a  right  to  take  from 
the  river  more  water  than  it  requires  for  those  purposes  that 
it  may  sell  such  water  to  those  outside  the  city  limits*  I 
think  this  question  must  be  answered  in  the  negative.  It  was 
so  determined  in  Feliz  v.  City  of  Los  Angeles,  58  Cal.  73, 
although  it  was  also  said  in  that  case  that  the  city  had  a 
right  to  all  the  waters  of  the  river  if  required  for  municipal 
purposes  or  for  the  use  of  the  inhabitants. 

"I  quote:  'It  was  conceded  on  the  argument  that  the  city 
had  appropriated  a  portion  of  the  waters  of  the  Los  Angeles 
river  before  plaintiff  constructed  ditches,  and  that  the  use 
by  the  city  to  the  extent  of  such  appropriation  could  not  be 
interfered  with  by  any  subsequent  appropriation ;  but  it  was 
contended  that  the  rights  of  the  city  were  limited  to  the 
amount  appropriated  at  the  time  plaintiffs  or  their  grantors 
built  their  ditch.  Such  a  construction  of  the  defendants' 
right  would  not  be  in  harmony  with  the  facts  found  by  the 
court.  From  the  very  foundations  of  the  pueblo,  in  1781, 
the  right  to  all  the  waters  of  the  river  was  claimed  by  the 
pueblo,  and  that  right  was  recognized  by  all  the  owners  of 
land  on  the  stream,  from  its  source,  and  under  a  recognition 
and  acknowledgment  of  such  right  plaintiff's  grantors  dug 
their  ditch.  .  .  .  The  city,  under  various  acts  of  the  legis- 
lature, has  succeeded  to  all  the  rights  of  the  former  pueblo. 
.  .  .  From  the  fifth  finding  it  appears  that  when  the  acts 
complained  of  were  done  by  the  officers  and  agents  of  the 
defendants,  all  of  the  waters  of  the  Los  Angeles  river  were 
required  and  were  not  sufficient  to  supply  the  wants  of  the 
city,  and  we  are  of  the  opinion  that  it  was  tlie  right  of  the 
municipal  authorities  to  prevent  any  diversion  of  said  waters 
at  the  time  by  the  plaintiffs. 

"  'We  do  not  intend  to  be  understood  as  holding,  nor  do 
we  hold,  that  the  city  has  the  right  at  any  time  to  dispose  of 
the  waters  for  use  upon  land  situated  without  the  city  limits. 


VERNON  IRRIGATION  Co.  v.  CITY  OF  Los  ANGELES.      191 

. 

On  the  contrary,  we  are  of  the  opinion  that  the  city  has  not 
that  right.' 

"That  opinion  was  based  on  the  judgment-roll,  which  con- 
tained findings  which  showed  the  nature  of  the  claim  of  the 
pueblo.  A  reference  will  show  that  as  to  such  facts  the  find- 
ings accord  with  those  stated  in  this  opinion.  The  case  is 
therefore  direct  authority  upon  the  proposition  here  involved. 
It  is  in  entire  accord  with  Lux  v.  Haggin,  supra,  and  with 
the  views  herein  expressed.  Indeed,  so  far  as  this  particular 
question  is  concerned,  it  would  be  difficult  to  reach  any  other 
conclusion.  The  waters  of  the  rivers  belonged  to  the  nation 
— was  held  by  it  for  the  use  of  the  inhabitants.  It  retained 
the  power  to  distribute  and  to  redistribute  it  as  the  interests 
of  the  community  required.  While,  therefore,  pueblos  had  a 
preferred  right  to  the  water,  it  must  be  understood  that  such 
right  could  be  asserted  only  to  the  amount  needed  to  supply 
the  wants  of  the  inhabitants. 

"The  city,  however,  and  its  predecessors,  the  pueblo,  has, 
from  a  time  antedating  the  change  of  flags,  continuously  taken 
from  the  river  more  water  than  was  required  for  municipal 
uses  and  for  the  inhabitants  and  has  supplied  the  same  extra- 
municipal  territory  with  water.  Relying  upon  it,  orchards, 
vines,  and  other  plants  have  been  set  out,  and  the  country 
has  become  valuable  and  thickly  populated.  Has  the  city 
by  such  use  acquired  a  right  to  do  so? 

"This  question  must  also  be  answered  in  the  negative. 
Whatever  may  have  been  the  case  once,  the  city  for  many 
years  has  certainly  had  no  right  under  its  charter  to  sell 
water  to  outside  parties  for  use  on  extra-municipal  lands. 
When  the  municipal  officers  do  this  they  exceed  their  author- 
/  ity,  and  their  act  is  not  that  of  the  city.  Under  our  system 
the  exercise  of  such  powers  for  a  great  length  of  time  will 
raise  no  presumption  of  a  grant  to  the  city  of  such  powers. 
Its  powers  are  derived  from  its  charter  and  from  public  laws, 
of  which  courts  take  judicial  notice. 

"Nor  can  the  city  in  this  action  assert  any  right  in  the 
inhabitants  of  the  extra-municipal  district  to  the  water. 
Waiving  other  difficulties  which  would  arise  if  we  could 
suppose  that  such  right  existed,  it  does  not  appear  that  the 


192  WATER  RIGHTS  AND  IRRIGATION  LAW. 

same  lands  or  the  same  individuals  have  been  continuously 
supplied.  It  is  the  territory  or  community  which  has  been 
so  supplied.  If  such  right  existed  in  the  community  or  in 
individuals,  it  could  be  asserted  against  the  city.  But  they 
have  taken  the  water  by  purchase  from  the  city,  thereby  show- 
ing that  the  use  has  not  been  under  a  claim  of  right  on  their 
part.  Indeed,  the  city  now  not  only  claims  the  right  to  en- 
tirely deprive  them  of  the  water,  but  asserts  that  it  will  soon 
do  so. 

"I  cannot  see  that  the  city  has  acquired  any  further  rights 
to  water  through  the  various  acts  of  the  legislature  referred 
to. 

"The  act  of  1850  (Stats.  1850,  p.  155)  incorporated  the 
city,  limited  it  to  four  square  miles,  and  provided  that  it 
should  succeed  to  the  property  rights  and  powers  of  the 
pueblo. 

"The  act  of  1851  (Stats.  1851,  p.  329)  authorized  the  city 
to  sell  or  lease  its  lands,  and  to  take  water  from  the  river  to 
irrigate  the  land  outside  the  city,  but  provided  that  it  should 
exercise  no  municipal  authority  over  such  lands. 

"In  1854  an  act  was  passed  construing  the  act  of  1850  as 
vesting  in  the  mayor  and  common  council  power  and  control 
over  the  distribution  of  water  for  the  purpose  of  irrigating 
vineyards  and  lands  within  the  limits  claimed  by  the  pueblo. 

"In  1874  an  act  was  passed  (Stats.  1874,  p.  633)  granting 
to  the  city  the  absolute  ownership  of  the  waters  of  the  river. 

"In  April,  1876,  the  charter  of  the  city  was  revised  (Stats. 
1875-76,  p.  693),  and  the  power  of  the  council  to  distribute 
the  waters  of  the  river  was  limited  to  the  city.  In  all  subse- 
quent revisions  or  amendments  to  the  charter  the  power  of 
the  municipal  officers  over  water  is  similarly  limited. 

"It  will  hardly  be  claimed  that  the  legislature  could  grant 
to  the  city  the  water  of  the  river  so  as  to  deprive  riparian 
owners  of  it.  It  may  be  claimed,  however,  that  the  act  of 
1854  enlarged  the  corporate  powers  of  the  municipality,  and 
that  thereafter  the  water  was  lawfully  distributed  and  sold 
to  be  used  on  extra-municipal  lands.  Granting  that  this  was 
so,  the  only  title  that  the  city  could  thus  acquire  would  be  by 
appropriation.  The  right  of  an  appronriator  may  be  lost  by 
abandonment,  and  the  subsequent  acts  restricting  the  power 


VEBNON  IRRIGATION  Co.  v.  CITY  OF  Los  ANGELES.      193 

of  the  city  to  distribute  the  water  to  the  inhabitants  and  lands 
of  the  city  amounted  to  such  abandonment.  At  present  the 
city  has  no  power  to  take  and  distribute  the  water  to  such 
extra-municipal  lands. 

"It  is  also  asserted  on  the  part  of  the  city  that  the  in- 
creased water  which  it  proposes  to  take  is  developed  water 
to  which  plaintiff  can  assert  no  right.  It  appears  that  arti- 
ficial banks  have  confined  the  waters  to  a  narrower  channel, 
and  it  is  inferred  from  the  fact  that  since  that  time  more 
water  has  been  running  in  the  stream  below  the  city  than 
this  developed  or  made  artificial  water.  But,  admitting  that 
such  inference  can  be  made,  this  would  be  to  save  water,  not 
to  develop  it. 

"As  plaintiff  is  not  entitled  to  an  injunction,  it  is  not 
necessary  to  determine  whether  the  court  could  ascertain  the 
amount  of  water  needed  by  the  city  and  limit  the  right  to 
such  necessity.  If  this  could  be  done  at  all,  it  is  evident 
that  it  would  be  in  a  very  liberal  spirit.  The  wants  of  a 
city  naturally  fluctuate,  and  on  an  emergency  may  be  greatly 
increased  beyond  ordinary  wants.  A  court  would  hardly  say 
that  where  it  can  a  city  may  provide  for  such  emergencies, 
even  though  they  are  very  unlikely  to  occur.  This  trouble 
does  not  exist,  however,  when  it  is  confessed,  as  here,  that 
the  motive  of  enlarging  the  ditches  to  take  more  water  is 
for  the  purpose  of  selling  it  to  irrigate  outside  lands.  From 
what  has  been  said  it  would  seem  to  follow  that  the  city  can- 
not do  that. 

"The  city  was  allowed,  over  the  objection  of  plaintiff,  to 
prove  that  it  was  a  matter  of  common  reputation,  more  than 
thirty  years  ago,  that  Los  Angeles  claimed  the  water  and 
had  the  control  of  it.  It  is  contended  that  the  city  could 
not  thus  prove  that  it  had  title  to  the  water;  that  the  claim 
of  the  city  is  based  either  upon  appropriation,  which  must  be 
shown  by  acts,  or  upon  the  usages  and  laws  of  Spain  and 
Mexico,  of  which  the  courts  take  judicial  notice,  and  which 
are  not  matters  of  proof.  The  effect  of  these  upon  the  right 
of  the  city  to  the  water  must  be  determined  by  the  court,  and 
cannot  be  shown  by  the  opinion  of  witnesses  or  of  the  general 
public. 

13 


194  WATER  EIGHTS  AND  IRRIGATION  LAW. 

"Admitting  appellant's  position  here,  it  is  difficult  to  dis- 
cover how  it  has  been  injured,  but  I  do  not  understand  such 
to  have  been  the  purpose  of  the  evidence.  It  was  proposed 
to  show  that  the  city  had  used  the  water  under  a  claim  of 
right.  It  was  proper  to  show  this,  and,  as  it  was  a  matter 
of  general  interest,  and,  as  to  a  portion  of  the  time,  of  ancient 
date,  and  the  declarants  dead,  it  could  be  established  by  proof 
of  the  prevailing  current  of  assertion.  (1  Greenleaf  on  Evi- 
dence, 128.) 

''We  come  now  to  the  case  of  defendant  Ames.  Ames  owns 
forty  acres  of  riparian  land  immediately  below  the  city  and 
immediately  above  the  riparian  lands  of  the  plaintiff.  He 
had  erected  a  dam  in  the  river  just  above  his  line  on  the  lands 
of  the  city,  but  with  the  consent  of  the  city,  and  proposes 
to  divert  six  hundred  inches  of  water,  miner's  measures,  for 
the  purpose  of  selling  the  same  to  nonriparian  owners,  using 
none  on  his  own  land. 

"It  was  adjudged  that  neither  Ames  nor  the  plaintiff  had 
any  right  to  any  of  the  waters  of  the  river  which  they  could 
assert  against  the  city,  but  when  the  city  permits  any  water 
to  flow  past,  if  it  be  all  developed  or  artificial  water,  Ames 
may  take  it  all.  When  it  is  mingled  with  the  natural  flow 
in  the  stream  it  must  be  regarded  as  though  it  were  the  nat- 
ural flow.  Then,  when  there  is  only  sufficient  water  to  supply 
the  uses  required  for  the  riparian  lands  of  plaintiff  and  de- 
fendant Ames,  plaintiff  may  have  one-fifth  of  such  water 
and  Ames  four-fifths.  When  there  is  more  than  is  required 
for  such  needs  Ames  may  first  take  one  hundred  inches,  and 
Ames  may  then  take  the  remainder,  if  any  there  be,  and 
both  plaintiff  and  Ames  are  perpetually  enjoined  from  taking 
any  water  from  the  stream  except  as  permitted  in  the  decree. 

"This  decree  is  not  supported  by  the  facts  found  or  by  any 
facts  which  could  have  been  found  from  the  evidence,  and  is 
inconsistent  with  the  law  applicable  to  such  cases. 

"As  we  have  seen,  there  is  no  evidence  which  tends  ta 
show  that  there  is  any  developed  or  artificial  water  in  the 
stream. 

"The  next  disposition  professes  to  protect  the  riparian 
rights  of  the  parties,  but  is  utterly  inconsistent  with  such 
rights.  Under  that  doctrine  Ames  would  not  be  entitled  aa 


VERNON  IRRIGATION  Co.  v.  CITY  OF  Los  ANGELES.      195 

against  plaintiff  to  four-fifths  of  the  water,  nor  to  any  other 
quantity,  except  when  it  was  required  for  certain  uses,  nor 
would  he  then  be  permitted  to  take  more  than  such  uses  re- 
quired, and  possibly  not  even  that  much. 

"And  then,  how,  consistently  with  the  doctrine  of  riparian 
rights,  could  Ames  take  one  hundred  inches  of  water  not  re- 
quired on  his  riparian  lands,  or  the  further  indefinite  quan- 
tity, after  plaintiff  has  been  allowed  to  take  two  thousand 
inches  ?  What  right,  under  the  findings  or  evidence,  has 
plaintiff  made  out  to  two  thousand  inches  of  water  under  any 
circumstances  ? 

"This  shows  a  very  loose  idea  of  the  doctrine  of  riparian 
rights.  If  that  doctrine  be  the  true  one,  as  this  court  has 
repeatedly  held,  the  riparian  owner  is  entitled  to  the  continu- 
ous flow  of  the  stream  as  part  and  parcel  of  his  estate,  and 
not  as  an  easement  or  incorporeal  right  issuing  out  of  land. 
He  does  not  own  the  corpus  of  the  water,  but  incident  to  his 
riparian  right  is  the  right  to  appropriate  a  certain  portion  of 
it.  It  is  only,  I  think,  by  some  species  of  appropriation  that 
one  can  ever  be  said  to  have  title  to  the  corpus  of  the  water. 
The  right  of  the  riparian  owner  is  to  the  continuous  flow  with 
a  usufructuary  right  to  the  water,  provided  he  returns  it  to 
the  stream  above  his  lower  boundary,  and  the  right,  as  I  have 
said,  to  make  a  complete  appropriation  of  some  of  it.  But, 
as  our  decisions  stand,  an  appropriator  cannot  acquire  a  right 
to  any  of  the  waters  of  a  stream  to  the  prejudice  of  a  riparian 
owner,  by  any  use,  except  under  the  statute  of  limitations. 

"I  think  some  material  findings  are  not  sustained  by  the 
evidence,  and  that  the  judgment  is  not  justified  by  the  find- 
ings, and  recommend  that  the  judgment  and  order  be  reversed 
and  a  new  trial  had." 

For  the  reasons  given  in  the  foregoing  opinion  the  judg- 
ment and  order  are  reversed  and  a  new  trial  granted. 


196  WATER  RIGHTS  AND  IRRIGATION  LAW. 


Riparian  Ownership — Appropriation  on  Private  Land — • 
Prescription. 

BEN  W.  CAVE  et  al.,  Respondents,  v.  GEORGE  W.  TYLER 
et  al.,  Defendants.  HANNAH  S.  SKINNER,  Appel- 
lant. 

(133  Cal.  566,  65  Pae.  1089.) 

McFARLAND,  J. — This  is  an  action  to  quiet  plaintiff's 
title  to  the  right  to  the  use,  and  a  diversion  through  a  ditch 
called  the  Mill  creek  zanje,  of  all  the  water  of  a  natural 
stream  called  Mill  creek  and  its  tributaries.  Judgment  went 
for  plaintiffs,  and  defendant  Hannah  S.  Skinner  appeals  from 
an  order  denying  her  a  motion  for  a  new  trial. 

Under  our  views  of  the  case,  it  is  not  necessary  to  examine 
all  of  the  questions  presented,  and  the  facts  essential  to  the 
point  of  the  decision  may  be  briefly  stated. 

Mountain  Home  creek  is  a  tributary  of  Mill  creek,  and 
Snow  creek  is  a  tributary  of  Mountain  Home  creek.  Appel- 
lant owns  land  through  which  the  two  latter  streams  run,  and 
which  is  riparian  to  the  same.  She  acquired  her  right  to  this 
land  in  1871  from  the  Southern  Pacific  Railroad  Company, 
who  acquired  it  in  the  same  year  from  the  United  States  gov- 
ernment. Since  1888  she  has  used  about  fifteen  inches  of 
water  from  Mountain  Home  creek,  and  about  two  inches  from 
Snow  creek,  for  the  necessary  irrigation  of  her  land — upon 
which  she  grows  trees,  vines,  and  vegetables — and  for  domes- 
tic purposes;  and  this  was  not  an  unreasonable  amount  of 
water,  as  the  court  finds,  for  such  purposes.  At  this  point 
the  land  through  which  these  streams  run  was  part  of  the 
public  domain  of  the  United  States.  On  Mill  creek,  about 
five  miles  below  appellant's  land,  the  respondents  and  their 
predecessors  have,  by  means  of  said  Mill  creek  zanje,  con- 
tinuously, since  about  the  year  1853,  diverted  all  the  water 
flowing  in  said  Mill  creek  for  irrigation  and  other  purposes, 
and  their  diversion  of  the  water  has  been  open,  notorious, 
and  under  a  claim  of  right.  They  claim  that  by  reason  of 
such  diversion  they  have  the  right  to  prevent  appellant  from 
using  any  of  the  water  of  the  tributaries  for  her  purposes  as 
above  stated,  and  the  court  so  decreed. 


CAVE  v.  TYLER.  197 

The  respondents  do  not  claim  any  rights  as  riparian  pro- 
prietors. It  is  not  found  that  they  own  any  land  whatever 
on  Mill  creek.  They  claim  solely  as  appropriators.  Of 
course,  under  the  general  law,  they  acquired  no  rights  by 
prescription,  as  against  appellant  or  her  predecessors,  who 
were  upper  riparian  proprietors;  for  a  diversion  of  the  water 
after  it  had  passed  her  land,  which  did  not  in  any  way  inter- 
fere with  its  natural  flow  over  her  land,  was  not  an  invasion 
of  her  right  which  she  was  called  upon  to  notice.  (Hargrave 
v.  Cook,  108  Gal.  72,  41  Pac.  18,  30  L.  E.  A.  390;  Bathgate 
v.  Irvine,  126  Cal.  135,  77  Am.  St.  Rep.  158,  58  Pac.  442.) 

It  is  contended,  however,  that  the  right  of  respondents  to 
continue  to  divert  all  of  the  water,  and  to  prevent  appellant 
from  using  any  of  it  as  a  riparian  owner,  is  guaranteed  to 
them  by  section  9  of  the  act  of  Congress  of  July  26,  18G6 
(14  U.  S.  Stats,  at  Large,  p.  253),  and  section  17  of  the  act 
amendatory  thereof,  passed  July  9,  1870  (16  U.  S.  Stats,  at 
Large,  p.  218).  We  do  not  think  that  this  contention  can  be 
maintained. 

There  is  no  finding  that  the  diversion  was  made  on  the 
public  domain  of  the  United  States.  There  are  some  things 
in  the  record  which  seem  to  indicate  that  the  diversion  was 
on  private  land  acquired  under  a  Mexican  grant,  in  which 
the  government  never  had  any  estate  or  interest;  but  there 
is  no  finding  on  the  subject.  The  burden  of  showing  that  the 
diversion  was  made  on  the  public  domain  was  upon  respond- 
ents, if  that  fact  was  essential  to  respondents'  asserted  right 
under  said  laws  of  Congress,  as  we  think  it  was.  In  City  of 
Santa  Cruz  v.  Enright,  95  Cal.  105,  30  Pac.  197,  the  defend- 
ant claimed  as  an  appropriator  of  water,  and  the  court  said: 
"It  is  claimed  that  the  court  erred  in  instructing  the  jury 
that  the  defendant  could  not  acquire  any  right  in  the  waters 
of  the  creek  by  mere  appropriation.  This  contention  cannot 
be  sustained.  (Alta  Land  Co.  v.  Hancock,  85  Cal.  222,  20 
Am.  St.  Rep.  217,  24  Pac.  645.)  It  does  not  appear  whether 
the  lands  through  which  the  stream  ran  at  the  time  defend- 
ant claims  to  have  acquired  his  right  of  appropriation  were 
private  or  public  property.  If  they  were  public  lands  of  the 
United  States  at  that  time,  we  think  it  devolved  upon  the 
defendant  to  show  that  fact."  In  the  case  at  bar,  therefore, 


198  WATER  EIGHTS  AND  IRRIGATION  LAW. 

the  respondents  are  not  in  the  position  of  the  one  who  has 
invaded  the  public  domain,  and  attempted  to  acquire  any 
possessory  rights  thereon. 

Section  9  of  the  act  of  1866  merely  provides  "that  when- 
ever, by  priority  of  possession,  rights  to  the  use  of  water 
for  mining,  agricultural,  manufacturing,  or  other  useful  pur- 
poses-have vested  and  accrued  and.  the  same  are  recognized 
and  acknowledged  by  the  local  customs,  laws,  and  decisions 
of  the  courts,  the  possessors  and  owners  of  such  vested  rights 
shall  be  maintained  and  protected  in  the  same";  and  section 
17  of  the  act  of  1870  merely  provides  that  "all  patents 
granted,  or  pre-emptions  or  homesteads  allowed,  shall  be  sub- 
ject to  any  vested  and  accrued  water  rights  ...  as  may  have 
been  acquired  under  or  recognized  by  the  ninth  section  of 
the  act  of  which  this  act  is  amendatory."  It  is  clear  that 
these  provisions  refer  only  to  the  interest  of  those  who  have 
gone  upon  the  public  domain  and  done  acts  of  ownership 
there  which  the  government,  as  proprietor,  could  have  pre- 
vented, but  in  which  it  acquiesced.  For  a  long  period  the 
general  government  stood  silently  by  and  allowed  its  citizens 
to  occupy  a  great  part  of  its  public  domain  in  California,  and 
to  locate  and  hold  mining  claims,  water  rights,  etc.,  according 
to  such  rules  as  could  be  made  applicable  to  the  peculiar 
situation;  and  when. there  were  contests  between  hostile  claim- 
ants, the  courts  were  compelled  to  decide  them  without  refer- 
ence to  the  ownership  of  the  government,  as  it  was  not  urged 
or  presented.  In  this  way — from  1849  to  1866 — a  system 
had  grown  up  under  which  the  rights  of  locators  on  the 
public  domain,  as  between  themselves,  were  determined,  which 
left  out  of  view  the  paramount  title  of  the  government.  The 
acts  of  1866  and  1870  were  intended  merely  to  expressly  rec- 
ognize and  ratify  this  system.  Where  they  speak  of  "vested 
and  accrued"  rights,  they  mean,  of  course,  vested  and  ac- 
crued as  between  the  locators;  for  mere  general  locators  have 
no  vested  right  as  against  the  government.  The  government 
could  have  ousted  these  locators  by  legal  proceedings,  or, 
perhaps,  by  the  direct  exercise  of  sovereign  force;  but  it  did 
not  do  so ;  it  acquiesced  in  their  possession.  And  by  the  con- 
gressional acts  above  noted  the  government  merely  said'  that 
whenever  it  had  acquiesced  in  asserted  possessory  rights  on 


CAVE  v.  TYLER.  199 

the  public  domain,  which  were  upheld  by  local  customs  and 
laws  and  decisions  of  the  courts  as  between  the  possessors 
themselves,  it  would  treat  those  possessors  as  though  they  had 
acquired  prescriptive  rights  against  the  government,  and 
would  recognize  such  rights  whenever  afterward  granting 
patents  to  any  part  of  its  land.  When  a  person  went  upon 
the  public  domain  and  there  diverted  the  water  of  a  stream 
running  thereon,  he  invaded  the  rights  of  the  government 
to  its  own  land,  and  the  government  could  either  resist  the 
invasion  or  acquiesce  in  it.  If  it  adopted  the  latter  course, 
then  the  kind  of  vested  and  accrued  right  grew  up  which  the 
government  by  said  acts  of  Congress  promised  to  protect. 
But  when  a  party  on  private  land,  to  which  the  government 
has  no  title,  diverts  water  from  a  stream,  what  vested  right 
does  he  acquire  in  the  water  in  the  upper  part  of  the  stream, 
where  it  flows  through  the  government  land?  Such  diver- 
sion does  not  interfere  in  any  way  with  the  flow  of  the  stream 
in  the  land  of  the  upper  proprietor;  it  does  him  no  injury; 
it  is  no  invasion  of  his  right;  it  gives  him  no  cause  of  action; 
it  leaves  no  field  for  the  play  of  consent  or  acquiescence;  it 
never  ripens  into  title  by  prescription.  Under  what  local 
custom  or  law,  under  what  "decisions  of  the  courts,"  was 
there  "a  vested  and  accrued"  right  of  respondents  to  all 
the  water  of  the  stream,  up  through  the  public  domain  to  its 
head,  thus  depriving  a  large  section  of  country  above  of  its 
source  of  fertility?  We  know  of  none.  In  all  the  cases  to 
which  we  have  been  referred  the  diversion  was  upon  the 
public  domain.  It  may  be  well  to  say — although  the  case  is 
not  referred  to  in  the  briefs — that  there  is  nothing  in  Healy 
v.  Woodruff,  97  Cal.  464,  32  Pac.  528,  at  all  conflicting  with 
the  views  above  expressed.  It  was  merely  held  there  that 
the  plaintiff  was  not  prevented  from  enlarging  his  ditch 
by  the  fact  that  since  its  original  construction  he  had  ob- 
tained title  from  the  government  to  "a  piece  of  land  through 
a  small  portion  of  which  the  said  Cedar  creek  (the  stream 
diverted)  runs."  There  was  no  contention  that  the  diversion 
and  ditch  were  not  on  the  public  domain. 

Under  the  above  view  it  is  not  necessary  to  notice  other 
points  made  by  appellant.  What  the  rights  of  the  respond- 
ents would  have  been  if  it  had  been  shown  that  the  diversion 


200  WATER  RIGHTS  AND  IRRIGATION  LAW. 

had  been  made  on  the  public  domain,  and  acquiesced  in  by 
the  government,  need  not  here  be  considered. 

The  order  appealed  from  is  reversed  and  a  new  trial  or- 
dered. 


Riparian  Rights — Effect  of  Nonuser — Bights  of  Prior  Ap- 
propriator — Easement. 

E.  T.  HARGRAVE  et  al.,  Appellants,  v.  D.  C.  COOK  et  al., 

Respondents. 
(108  Cal.  72,  41  Pac.  18,  30  L.  E.  A.  390.) 

HENSHAW,  J. — Appeal  from  an  order  granting  a  new 
trial. 

Plaintiffs  claim  ownership  in  common  with  some  of  the 
named  defendants  in  a  certain  described  ditch,  flume,  water 
right,  and  right  of  way,  by  means  of  which  they  diverted  the 
waters  of  Piru  river  to  their  nonriparian  lands.  The  ditch 
was  known  as  the  Hargrave  &  Comfort  ditch.  They  averred 
the  adverse  claims  of  defendants  and  asked  for  a  decree 
settling  their  rights  and  enjoining  defendants  from  further 
assertion  of  such  or  any  claims. 

The  defendants  answered  in  accordance  with  their  various 
claims;  some  asserting  ownership  in  the  ditch  and  water 
rights,  others  declaring  upon  superior  rights  by  prescription. 
But,  in  particular,  the  defendant  Cook  claimed  the  rights  of 
a  riparian  owner  to  the  water  of  the  creek,  which  rights  are 
pleaded  as  superior  to  those  of  the  ditch  owners. 

Stripped  of  matters  unnecessary  to  this  consideration  the 
following  are  the  essential  facts:  Defendant  Cook  is  the 
owner  of  the  Temescal  rancho  under  United  States  patent 
issued  in  1871.  Piru  river  flows  through  this  ranch,  and 
thence  across  the  northwest  quarter  of  section  20.  About  the 
year  1875,  section  20  being  public  land  of  the  United  States, 
plaintiffs'  predecessors  in  interest  constructed  the  ditch  and 
diverted  part  of  the  waters  of  the  river  with  the  acquiescence 
of  the  then  occupant  of  the  land ;  and,  as  the  court  found, 
plaintiffs  and  their  grantors,  "for  more  than  fourteen  years 


HABGBAVE  v.  COOK.  201 

next  preceding  the  commencement  of  this  suit,  have  been  in 
quiet,  peaceable,  open,  adverse,  notorious,  uninterrupted,  and 
exclusive  possession,  claiming  right  and  title  of  said  water 
ditch,  with  the  right  to  divert  and  use  the  waters  of  said 
Piru  river  to  the  extent  of  two  hundred  and  seventy-one 
inches,  measured  under  four-inch  pressure." 

The  court  further  found  that  the  predecessors  in  interest  of 
the  defendant  Cook,  in  the  Temescal  rancho,  did  not  use  any 
of  the  waters  of  said  stream,  except  at  rare  and  irregular 
intervals,  and  in  small  quantities,  and  that  they  at  all  times 
knew  that  the  said  Hargrave  &  Comfort  ditch  was  being  con- 
tinuously used,  and  that  the  waters  of  the  stream  were  be- 
ing diverted  and  conducted  to  lands  not  riparian  to  the  stream, 
and  that  such  use,  "with  their  full  knowledge  and  ac- 
quiescence," had  been  continuous  for  a  period  exceeding  ten 
years  before  Cook  acquired  title  to  the  Temescal  rancho  and 
the  northwest  quarter  of  section  20.  Also,  it  is  found  that 
when  Cook  acquired  title  he  knew  of  the  use  of  the  water  by 
defendants,  and  "did  not  object  to  such  use,  but  fully  ac- 
quiesced therein  until  about  the  commencement  of  this  suit, 
and  that  the  rights  of  plaintiffs  were,  not  disputed  until  long 
after  they  had  fully  acquired  a  prescriptive  right  with  their 
co-owners  to  a  part  of  the  waters  of  the  said  stream." 

The  waters  of  Piru  river  had  in  the  past  been  little  used 
by  the  owners  of  the  Temescal  rancho,  but,  upon  Cook's  ac- 
quisition of  it,  he  began  the  planting  of  extensive  orchards 
of  fruit-bearing  trees  until,  as  he  pleads,  there  were  at  the 
commencement  of  the  suit  over  two  millions  of  orchard  and 
nursery  trees  dependent  upon  the  waters  of  the  Piru  river 
for  irrigation.  This  use  of  the  water  by  Cook  naturally  less- 
ened the  flow  of  the  stream  to  plaintiffs'  ditch,  decreased 
the  supply  available  for  their  purposes,  and  led  to  this  ac- 
tion. 

The  Piru  Water  Company,  another  of  the  defendants,  took 
water  from  the  Piru  river  by  means  of  a  ditch  higher  up 
the  stream  than  the  ditch  of  plaintiffs.  Its  ditch  at  the  time 
of  the  action  tapped  the  river  upon  the  land  of  the  Temescal 
rancho  and  carried  tie  water  over  and  across  it  to  other 
nonriparian  lands.  Its  right  by  prescription  was  claimed  to 
be  prior  and  superior  to  the  right  of  the  owners  of  the  Har- 


202  WATER  RIGHTS  AND  IRRIGATION  LAW. 

grave  &  Comfort  ditch,  and  this  seems  to  have  been  conceded, 
though  the  precise  extent  of  the  right  is  a  matter  of  contro- 
versy which  will  be  considered  hereafter. 

The  court  by  its  judgment  and  decree  awarded:  1.  The 
right  to  Cook  to  use  the  waters  flowing  over  the  Temescal 
rancho  for  domestic  purposes  and  the  watering  of  stock; 
2.  The  right  to  Cook  to  a  hundred  inches  of  water,  under  four- 
inch  pressure,  drawn  off  in  Esperanza  ditch;  3.  The  right  to 
the  Piru  Water  Company  to  an  amount  not  in  excess  of  two 
hundred  and  eighty-five  inches,  or  so  much  thereof  as  may 
be  necessary  for  the  uses  accustomed  to  be  made  upon  cer- 
tain nonriparian  lands;  4.  The  right  to  the  owners  of  the 
Hargrave  &  Comfort  ditch  to  an  amount  not  in  excess  of 
two  hundred  and  seventy-one  inches,  or  so  much  thereof  as 
may  be  necessary  for  the  uses  accustomed  to  be  made,  and 
in  accordance  with  the  amounts  by  the  owners  respectively 
accustomed  to  be  used  upon  certain  described  nonriparian 
lands;  and  5.  The  right  to  Cook,  "after  the  wants  and  necessi- 
ties of  the  above  prior  owners  have  been  fully  and  reasonably 
supplied,"  to  use  the  surplus  waters  for  irrigation  on  the 
lands  of  his  ranch. 

By  this  decree  the  right  of  an  upper  riparian  owner  to  the 
use  of  the  water  for  irrigating  purposes  is  made  subordinate 
to  the  right  of  a  lower  appropriator,  because  at  the  time  the 
right  of  appropriation  vested  the  riparian  owner  was  not 
actually  using  the  water  for  the  designated  purpose. 

This  view,  appellants  contend,  is  sound.  It  is  the  view 
taken  by  the  court,  upon  trial,  and  expressed  by  the  judge  in 
the  following  language:  "I  think  the  law  is  well  settled  in 
this  state  that  a  person  diverting  and  appropriating  to  a  use- 
ful purpose  the  waters  of  a  running  stream  may  acquire  an 
ownership  in  the  right  to  the  use  of  such  waters,  to  the 
amount  he  has  appropriated  to  such  useful  purpose,  by  opera- 
tion of  the  statute  of  limitation,  even  against  an  upper  ripa- 
rian owner,  although  the  point  of  diversion  is  without  the 
limits  of  the  lands  of  such  riparian  owner,  except  as  against 
any  lawful  use  to  which  the  riparian  owner  had  or  was  mak- 
ing of  the  waters  during  the  time  of  the  creation  of  the  right 
in  the  appropriator  by  operation  of  statute  of  limitations." 


HAEGRAVE  v.  COOK.  203 

Upon  the  hearing  of  the  motion  for  a  new  trial  the  court 
receded  from  this  position,  after  the  consideration  of  au- 
thorities not  before  called  to  his  attention,  and  ordered  a  new 
trial.  Other  grounds  were  urged  in  support  of  the  motion. 
Such  of  them  as  are  deemed  necessary  will  receive  attention, 
but  the  principal  point  inviting  consideration  is  the  one  above 
set  forth. 

The  right  of  a  riparian  proprietor  in  or  to  the  waters  of 
a  stream  flowing  through  or  along  his  land  is  not  the  right 
of  ownership  in  or  to  those  waters,  but  is  a  usufructuary 
right — a  right,  amongst  others,  to  make  a  reasonable  use  of  a 
reasonable  quantity  for  irrigation,  returning  the  surplus  to 
the  natural  channel,  that  it  may  flow  on  in  the  accustomed 
mode  to  lands  below.  If  his  needs  do  not  prompt  him  to 
make  any  use  of  them,  he  still  has  the  right  to  have  them 
flow  onto,  and  along,  and  over  his  land  in  their  usual  way, 
excepting  as  the  accustomed  flow  may  be  changed  by  the  act 
of  God,  or  as  the  amount  of  it  may  be  decreased  by  the  rea- 
sonable use  of  upper  owners  and  riparian  proprietors.  But 
none  of  his  rights  to  put  the  water  to  legitimate  uses  is  lost 
by  mere  nonuser.  His  rights  are  not  easements  nor  appur- 
tenances to  his  holding.  They  are  not  the  rights  acquired  by 
appropriation  or  by  prescriptive  use.  They  are  attached  to 
the  soil  and  pass  with  it  (Lux  v.  Haggin,  69  Cal.  255,  10 
Pac.  674),  and  may  be  lost  only  by  grant,  condemnation,  or 
prescription. 

With  any  use  or  diversion  of  the  water  after  it  has  passed 
his  land  the  upper  riparian  proprietor,  having  no  ownership 
in  and  no  longer  any  rights  to  it,  would  have  no  concern. 
(The  right  to  forbid  the  lower  owner  from  backing  the  water 
and  flooding  his  land  not  being  here  under  consideration.) 
None  of  his  rights  would  or  could  be  impaired  thereby,  and 
without  such  an  impairment  he  would  be  without  injury, 
and,  consequently,  without  cause  for  complaint  or  redress. 
"His  right  extends  no  further  than  the  boundary  of  his  own 
estate.  He  cannot  complain  of  the  mere  facts  of  the  diver- 
sion of  the  watercourse  either  above  or  below  him.  if,  within 
the  limits  of  his  own  property,  it  is  allowed  to  follow  its 
accustomed  channel."  (Lux  v.  Haggin,  supra.) 


204  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  rancho  Temescal  was  never  public  land  within  the 
meaning  of  the  United  States  statutes  affecting  appropria- 
tions of  water.  The  riparian  rights  of  the  owners  of  private 
land  are  fully  protected  by  section  1422  of  the  Civil  Code. 

One  who  bases  his  right  solely  upon  appropriation  made  of 
waters  flowing  over  land  which  at  the  time  of  the  appropria- 
tion was  a  part  of  the  public  domain  acquires  thereby  no 
right  superior  to  or  in  derogation  of  those  attaching  to  lands 
riparian  to  the  same  stream  which  at  the  time  of  the  appro- 
priation were  held  in  private  ownership.  .  .  . 

No  estoppel  is  pleaded  or  found,  nor  would  the  facts  war- 
rant such  finding. 

The  motion  for  a  new  trial  was  properly  granted  upon  the 
ground  considered. 

In  contemplation  of  the  new  trial  it  is  proper  to  say  that 
the  rights  of  defendant  Cook  and  of  defendant,  the  Piru 
Water  Company,  of  which  Cook  is  a  stockholder,  are  in  issue 
in  this  action  only  to  the  extent  that  their  rights  affect  or 
are  affected  by  the  rights  of  plaintiffs.  As  between  them- 
selves, their  rights  are  not  subject  here  to  determination,  ex- 
cepting so  far  as  may  be  necessary  to  do  complete  justice  to 
plaintiffs,  and  excepting  so  far  as  between  themselves 
they  have  tendered  and  joined  hostile  issues.  The  limita- 
tion upon  the  use  of  water  appropriated  by  the  Piru  Water 
Company  is  not  warranted  by  the  evidence.  So  far  as  the 
plaintiffs  are  concerned,  the  Piru  Water  Company  is  prior  in 
time  and  superior  in  location,  and  had  acquired  the  owner- 
ship of  a  given  amount  of  water  while  the  water  was  used  for 
proper  objects,  with  the  right  to  change  the  place  and  pur- 
pose of  use  so  long  as  the  change  did  not  injuriously  affect 
the  rights  of  the  subsequent  appropriators  and  claimants. 

Upon  the  question  of  the  right  of  the  owners  of  the  Har- 
grave  &  Comfort  ditch  to  extend  it  five  or  six  hundred  feet 
over  the  northwest  quarter  of  section  20,  now  the  land  of 
Cook,  the  better  to  facilitate  the  obtaining  of  their  water,  we 
do  not  deem  it  proper,  upon  this  appeal,  to  do  more  than 
point  out  that  while  an  appropriator  of  water  upon  govern- 
ment land  retains  his  rights  when  the  land  passes  into  pri- 
vate ownership,  by  virtue  of  the  confirmatory  statutes  of  the 
United  States  (14  U.  S.  Stats,  at  Large,  253;  16  U.  S.  Stats. 


SENIOR  v.  ANDERSON.  205 

at  Large,  218),  and,  while  in  the  exercise  of  these  rights,  he 
may  change  the  point  of  diversion  to  another  place  upon  ser- 
vient  tenement,  he  is  nevertheless  limited  in  so  doing  to  the 
exigencies  of  the  situation,  and  has  no  right  to  make  such 
change  arbitrarily  and  at  will.  He  may  do  so  when,  under 
certain  circumstances,  it  is  required  to  enable  him  to  take  the 
amount  of  water  to  which  he  has  ownership,  but  then  only 
when  "others  are  not  injured  by  the  change."  (Civ.  Code, 
sec.  1412.)  His  rights  are  the  rights  of  the  grantee  of  an 
easement,  and  extend,  in  the  matter  of  changing  the  point 
of  diversion,  no  further  than  the  boundaries  of  the  servient 
tenement,  and  even  when  entering  upon  this  he  is  under  obli- 
gation only  to  make  reasonable  changes  with  reasonable  care, 
and  also  to  repair,  so  far  as  possible,  whatever  damage  his 
labors  may  have  occasioned  (Gale  &  Whately  on  Easements, 
235)  ;  as  to  lands  other  than  those  subject  to  his  easements, 
and  as  to  other  claimants  and  owners,  he  can  make  no  change 
at  all  which  injuriously  affects  them  or  their  rights. 
The  order  appealed  from  is  affirmed. 


Riparian  Rights — Prior  Appropriation — Lower  Subsequent 
Appropriation. 

EDWIN  SENIOR  et  al.,  Appellants,  v.  J.  C.  ANDERSON 

et  al.,  Respondents. 
(130  Cal.  290,  62  Pac.  563.) 

THE  COURT. — Action  to  quiet  title  to  a  water  right. 
Findings  and  judgment  were  for  the  defendants,  and  plain- 
tiffs appeal  from  the  judgment  and  from  an  order  denying  a 
new  trial,  and  also  from  an  order  after  judgment  relating 
to  costs. 

A  former  judgment  in  this  case  in  favor  of  the  defendants 
was  reversed  upon  plaintiffs'  appeal,  and  a  new  trial  granted. 
The  second  trial  was  had  upon  the  same  pleadings  and  the 
issues  are  therefore  unchanged. 


206  WATER  RIGHTS  AND  IRRIGATION  LAW. 

For  a  statement  of  the  case  and  the  issues  involved,  see 
the  opinion  of  this  court  upon  the  former  appeal,  reported 
under  the  same  title,  in  115  Cal.  496,  47  Pac.  454.  The  prin- 
cipal question  of  fact  was  then,  and  is  now.  the  extent  or 
quantity  of  the  Hines  appropriation.  Upon  the  former  ap-r 
peal  it  was  held  that  the  quantity  appropriated  by  Hines 
was  so  much  of  the  water  of  the  stream  as  was  reasonably 
necessary  for  the  use  of  the  Hines  tract  of  land  and  at  the 
time  the  action  was  commenced.  The  quantity  of  land  then 
irrigated  was  not  materially  different  from  that  now  irrigated. 
The  quantity  of  water  then  diverted  through  the  Hines  ditch 
and  that  now  diverted,  so  far  as  the  evidence  shows,  is  the 
same,  namely,  seventy-seven  and  seventy-eight  one-hundredths 
inches,  measured  under  a  four-inch  pressure.  Upon  the 
former  appeal,  this  court  concluded,  from  the  evidence,  that 
more  water  was  diverted  upon  the  Hines  ranch  than  was  re- 
quired o^  used  for  any  useful  purpose  thereon.  The  evidence 
upon  the  second  trial  shows  that  there  are  now  irrigated  upon 
the  Hines  tract  about  forty  acres  in  fruit  trees,  no  alfalfa, 
and  ten  or  twelve  acres  of  wild  or  uncultivated  grass  land  used 
for  pasturage,  and,  as  before,  one  hundred  and  eighty  to  two 
hundred  acres  of  nonriparian  lands,  outside  of  the  Hines 
tract,  upon  which  citrus  fruits  are  cultivated. 

Upon  the  second  trial,  there  was  evidence  tending  to  show  v 
that  there  were  other  portions  of  the  Hines  tract  that  were 
capable  of  irrigation  from  the  Hines  ditch,  but  under  the 
decision  upon  the  former  appeal  that  fact  does  not  affect 
Senior's  appropriation,  which  is  to  be  determined  by  the  quan- 
tity of  water  reasonably  required  for  the  irrigation  of  the 
lands  then  irrigated  upon  the  Hines  tract,  omitting,  perhaps, 
the  pasture  land,  which  Mr.  W.  L.  Hall  testified  he  did  not 
now  irrigate  because  he  did  not  have  sufficient  water,  and 
had  not  for  two  years.  Several  witnesses  testified  that  the 
whole  of  the  water  was  necessary  for  use  upon  the  Hines  tract, 
and  the  court  so  found,  though  it  further  found  that  "While 
the  amount  of  seventy-seven  and  seventy-eight  one-hundredths 
inches,  measured  under  a  four-inch  pressure,  would  be  more 
than  was  necessary  for  the  irrigation  of  the  Hines  tract,  if 
the  same  flowed  continuously,  yet  no  such  quantity  of  water 
continues  to  flow  during  any  considerable  portion  of  the  irri- 


SENIOR  v.  ANDERSON.  207 

gation  season,  and  it  is  necessary  to  make  use  of  all  the 
water  that  would  flow  in  said  conduits  of  the  defendants, 
while  the  same  continues  to  flow,  to  keep  the  lands  in  such 
condition  as  that  the  quantity  of  water  usually  flowing  in  the 
stream  later  in  the  season  would  suffice  for  the  proper  irriga- 
tion thereof,  and  the  said  amount  flowing  in  said  stream  dur- 
ing the  irrigating  season  is,  in  many  years,  insufficient  in 
quantity  for  the  proper  supply  of  said  lands. ' ' 

Many  witnesses  were  examined  and  testified  to  the  effect 
that  the  flow  of  water  in  the  stream  greatly  diminished  dur- 
ing the  irrigating  season,  but  no  effort  seems  to  have  been 
made  to  ascertain  by  measurement  the  average  flow  of  the 
water  in  different  months  of  the  season,  nor  the  quantity  in 
fact  used  upon  the  Hines  ranch,  nor  upon  the  outside  lands, 
nor  whether  the  water  was  used  upon  the  Hines  land  by  con- 
tinuous flow,  or  alternately,  by  time  division,  with  the  out- 
side lands.  It  does  appear,  however,  that  the  water  system 
of  the  outside  lands  had  a  capacity  of  thirty  inches,  and 
said  lands  were  entitled  to  five-eighths  of  the  water,  and 
the  Hines  place  to  three-eighths ;  and,  in  the  absence  of  spe- 
cific evidence  to  the  contrary,  we  must  assume  that  the  water 
was  in  fact  used  substantially  in  those  proportions.  Of  course, 
it  is  immaterial  to  the  plaintiffs  where  the  water  legally  ap- 
propriated by  Hines  was  used,  but  the  quantity  of  land  irri- 
gated from  that  source  furnishes  evidence  tending  to  show 
whether  the  quantity  of  water  diverted  from  the  stream 
through  the  Hines  ditch  was  more  than  was  reasonably  neces- 
sary for  beneficial  uses  upon  the  Hines  land,  since  that  was 
the  measure  of  the  extent  of  his  appropriation.  Plaintiffs 
also  introduced  several  witnesses  who  had  experience  in  the 
irrigation  of  fruit  lands  in  that  vicinity,  who  testified  to  the 
quantity  of  land  that  could,  in  their  judgment,  be  irrigated 
with  one  inch  of  water  flowing  perpetually,  and  these  ranged 
from  two  acres  of  fruit  land  to  seven  or  eight  acres  to  each 
inch  of  water,  and  among  the  witnesses  who  so  testified  were 
four  of  the  defendants.  This  wide  variance  as  to  the  quan- 
tity per  acre  is  based  partly  upon  the  character  of  the  soil, 
and  partly  upon  the  age  of  the  trees,  and  the  manner  of  using 
the  water.  This  evidence  tends  strongly  to  sustain  the  con- 
tention of  the  plaintiff,  and  supported  as  it  is  by  the  fact 


203  WATER  RIGHTS  AND  IRRIGATION  LAW. 

that  five-eighths  of  the  water  is  used  upon  one  hundred  and 
eighty  acres  of  other  lands,  while  the  remainder  sustains  the 
trees  growing  upon  the  Hines  ranch  without  injury,  so  far 
as  disclosed  by  the  evidence,  and  by  the  further  fact  that  for 
two  years  or  more  what  was  supposed  to  be  about  one-tenth 
of  the  water  diverted  by  both  ditches  was  used  upon  plain- 
tiffs' land,  would  appear  to  greatly  preponderate  over  the 
general  expression  of  an  opinion  that  the  entire  flow  dur- 
ing the  irrigating  season  was  not  more  than  sufficient  for  the 
proper  irrigation  of  the  Hines  land  upon  which  water  had 
been  at  any  time  used. 

There  was  some  testimony,  however,  of  a  different  charac- 
ter and  furnishing  a  different  basis  of  calculation. 

W.  L.  Hall,  one  of  the  defendants,  and  also  one  of  the 
owners  of  the  Hines  ranch  and  having  the  charge  of  it  for 
himself  and  his  co-owner,  was  asked  by  his  counsel  the  fol- 
lowing question:  "When  you  say  it  would  require  forty 
inches  to  the  acre  to  irrigate  it  during  the  year,  do  you  mean 
by  that  that  it  would  take  forty  inches  of,  say,  twelve  thou- 
sand five  hundred  or  thirteen  thousand  gallons,  or  whatever 
an  inch  of  water  is,  forty  times  that  amount  per  acre  during 
the  year?  Is  that  what  you  mean  when  you  say  forty  inches 
to  the  acre?  A.  Forty  times  thirteen  thousand  gallons,  that 
is  what  I  mean;  and,  dividing  it  up  during  the  season,  one- 
fifth  of  that  would  be  eight  inches  to  the  irrigation.  And 
that  amount  placed  on  the  ground  is  what  I  term  forty  inches 
during  the  season." 

Assuming  that  the  witness  correctly  states  the  number  of 
gallons  required  to  put  one  inch  of  water  upon  an  acre  of 
ground,  the  number  of  inches  measured  under  a  four-inch 
pressure  required  to  put  that  quantity  of  water  upon  an 
acre  of  land  is  not  difficult  of  computation.  According  to  the 
"Statistician  and  Economist"  for  1899-1900,  page  549,  one 
miner's  inch  (four-inch  pressure)  will  discharge  in  twenty- 
four  hours  2,260.8  cubic  feet,  or  16,956  gallons.  Deducting 
thirty-eight  per  cent  for  the  difference  between  the  theoretical 
and  the  actual  flow  (6,4-13  gallons),  we  have  10,513  gallons 
actual  flow  in  twenty-four  hours,  or,  for  ten  days,  105,130  gal- 
lons, while  each  irrigation  of  eight  inches  on  defendants' 
basis  would  require  eight  times  13,000  or  104,000  gallons.  If,  ^ 


SENIOR  v.  ANDERSON.  209 

therefore,  we  further  assume  that  fifty  acres  are  irrigated  on 
the  Hines  ranch,  fifty  inches  constant  flow  would  put  the 
required  amount  of  water  on  each  acre  every  ten  days;  or  a 
constant  flow  of  seventeen  inches  would  put  said  required 
amount  of  water  on  said  fifty  acres  every  month. 

Here  is  a  mathematical  demonstration  based  upon  the  tes- 
timony of  defendant  Hall,  who,  with  his  co-owner  of  the  Hines 
ranch  and  of  the  water  right,  conveyed  that  water  right  to 
the  corporation,  and  through  it  to  his  codef endants ;  and  it 
may  be  added  that  this  conclusion  is  supported  more  or  less 
directly  by  the  testimony  of  all  the  witnesses  who  base  their 
testimony  upon  their  experience  and  observation  of  the  quan- 
tity of  fruit  land  that  may  be  irrigated  per  inch  of  water; 
and  the  fact  that  for  seven  or  eight  years  before  the  second 
trial  of  this  case  from  one  hundred  and  eighty  to  two  hun- 
dred acres  of  fruit  land,  outside  of  the  Hines  land,  had  been 
irrigated  almost  entirely  from  the  Hines  ditch  closely  ap- 
proaches a  demonstration  that  the  capacity  of  the  Hines  ditch, 
and  the  water  diverted  thereby,  was  largely  in  excess  of  the 
requirements  of  the  Hines  ranch. 

As  to  the  quantity  of  water  flowing  in  the  stream  during 
the  irrigating  season,  Mr.  Hall  testified:  "About  sixty  inches 
on  an  average  flows  down  that  creek  to  our  point  of  diversion*, 
I  would  suppose,  in  the  first  part  of  the  year,  and  diminishes 
rapidly  until  along  in  August  I  have  hardly  ever  found 
more  than  thirty  inches;  last  year  there  was  about  twenty 
inches  in  October.  The  lowest  stage  of  water,  I  think,  was 
sixteen  inches.  In  the  first  of  July  last  year  there  was  thirty- 
five  or  forty  inches.  That  amount,  I  think,  would  not  be 
any  more  than  sufficient  to  irrigate  the  cultivated  lands  on  the 
Hines  place." 

These  quantities  are  estimated  by  the  witness;  but,  assum- 
ing they  are  correct,  and  testing  the  quantity  of  water  re- 
quired to  irrigate  the  lands  that  have  been  irrigated  on  the 
Hines  place,  including  the  ten  or  twelve  acres  of  grass  land, 
either  by  the  testimony  of  the  witnesses  as  to  the  quantity  of 
water  required  per  acre  or  by  the  computation  based  upon 
the  theory  that  eight  inches  in  depth  of  water  is  required  for 
each  of  five  irrigations  during  the  season  (being  equal  to 
14 


210  WATER  RIGHTS  AND  IRRIGATION  LAW. 

forty  inches  of  rainfall),  the  findings  of  the  court  that  the 
whole  of  the  stream,  to  the  extent  of  the  capacity  of  the  ditch, 
while  there  is  sufficient  water  to  fill  it,  and  all  that  may 
thereafter  flow  during  the  irrigating  season  is  necessary  for 
agricultural  and  domestic  uses  on  the  Hines  land,  are  not 
justified  by  the  evidence. 

It  is  contended  by  respondents  that  Senior  acquired  no 
rights  by  his  notice  and  the  actual  diversion  of  the  water  in 
October,  1887;  that  riparian  rights  had  before  that  attached 
to  the  lands  of  Mrs.  Hines,  she  having  proved  up  and  claimed 
her  final  certificate  of  purchase.  There  is  no  merit  in  this 
contention.  Her  riparian  rights  could  only  entitle  her  to  a 
reasonable  use  of  the  water  upon  her  riparian  lands,  but  hav- 
ing before  she  acquired  title  from  the  United  States  appro- 
priated more  water  than  was  required  for  beneficial  uses  upon 
said  land,  she  could  acquire  no  right  to  any  additional  quan- 
tity under  the  law  of  riparian  rights.  .  .  . 

Again,  it  is  contended  by  respondents  that  it  is  not  shown 
by  any  satisfactory  evidence  that  there  was  ever  any  water 
used  oh  the  Senior  place  except  at  times  when  there  was  a 
quantity  in  the  stream  in  excess  of  that  diverted  by  the  de- 
fendants, except  the  little  that  rises  in  the  stream  below 
defendants'  dam  and  ditch,  and  that  it  does  not  appear  thaf 
such  right  was  ever  interfered  with.  That  Senior  was  en- 
titled to  have  all  of  the  stream  (except  so  much  as  was  legally 
appropriated  by  Hines)  flow  down  to  his  land  cannot  be 
questioned;  and  if  Hines,  or  the  defendants,  diverted  more 
of  the  stream  than  was  legally  appropriated,  it  was  clearly 
an  interference  with  plaintiffs '  rights ;  and,  in  the  fourth 
finding,  it  is  stated,  after  finding  the  posting  of  the  notice 
and  the  construction  of  the  ditch  by  Senior,  that  he  "did 
divert  from  the  stream  at  divers  time  such  water  as  might  be 
flowing  therein  at  the  point  of  said  diversion  for  use  upon 
his  land." 

By  his  appropriation  Senior  was  entitled  to  the  quantity  of 
water  reasonably  necessary  for  the  uses  named  in  his  notice, 
provided  that  quantity  would  naturally  flow  in  the  stream 
at  the  point  of  his  diversion,  as  against  all  above  him  on  the 
same  stream,  subject  to  the  single  exception  of  rights  ante- 
cedently acquired.  (Crandall  v.  Woods,  8  Cal.  136.) 


DUCKWORTH  v.  WATSONVILLE  WATER  AND  LIGHT  Co.     211 

Respondents  contend,  however,  that  the  use  of  water  on 
the  Hines  place  began  ten  or  eleven  years  before  Senior  set- 
tled upon  his  land,  that  Senior  settled  there  in  1886,  that  his 
notice  of  appropriation  was  posted  November  3,  1887,  nearly 
seven  years  before  this  suit  was  begun,  and  again  urge  that 
plaintiffs '  right  to  any  of  the  water  actually  diverted  through 
the  Hines  ditch  is  barred  by  the  statute  of  limitations.  This 
point  was  disposed  of  on  the  former  appeal,  where  it  was 
said:  "The  diversion  through  the  Hines  ditch  of  water  not 
necessary  for  a  useful  purpose,  for  any  length  of  time,  would 
not  give  a  right  as  against  the  plaintiffs,  and,  therefore,  the 
application  of  the  water  to  a  beneficial  purpose  upon  other 
lands  by  the  defendants,  or  their  predecessors  in  interest,  the 
Ojai  Valley  Water  Company,  must  mark  the  beginning  of 
the  adverse  use";  and  that  use  is  clearly  shown  to  have  be- 
gun within  five  years  before  this  action  was  commenced. 

That  plaintiffs  have  a  useful  purpose  to  which  they  desire 
to  apply  the  water  is  clear.  Senior  testified  that  about  eighty 
acres  of  the  one  hundred  and  sixty  patented  to  him  is  capable 
of  irrigation,  and  about  twenty-five  were  in  actual  cultivation 
at  the  commencement  of  this  suit.  .  .  . 

It  is  ordered  that  the  judgment  and  the  order  denying  de- 
fendants '  motion  for  a  new  trial  be  reversed.  .  .  <. 

Rehearing  denied. 


Extent  of  Riparian  Rights — Lake — Appropriation  of  Water 
— Effect  of  Use  on  Riparian  Right — Notice. 

S.  J.  DUCKWORTH  and  FLORA  McKINLAY  DUCK- 
WORTH, Respondents,  v.  WATSONVILLE  WATER 
AND  LIGHT  COMPANY  et  al.,  Appellants. 

(150  Cal.  520,  89  Pac.  338.) 

•^       ^ 
SHAW,  J. — Plaintiffs   are  the  owners  of  three  hundYed 

and  twenty  acres  of  land  fronting  on  Pinto  lake,  the  plaintiff 
Flora  being  the  owner  of  the  fee,  and  the  other  plaintiff  the 
owner  of  a  leasehold  interest.  They  claim  rights  in  the  waters 
of  the  lake  as  riparian  proprietors  thereon,  and  the  plaintiff 


212  WATER  RIGHTS  AND  IRRIGATION  LAW. 

S.  J.  Duckworth  also  claims  a  right  by  appropriation  to  take 
therefrom  a  quantity  of  water  equal  to  a  continuous  flow  of 
two  hundred  and  fifty  miner's  inches  under  a  four-inch 
pressure.  The  lake  contains  an  area  of  about  seventy  acres. ^ 
The  defendant  Watsonville  Water  and  Light  Company  owns 
sixty-five  acres  of  the  bed  and  surface  of  the  lake  and  all  the 
land  surrounding  it,  except  the  land  of  plaintiffs  and  two 
other  tracts  of  small  extent,  and  claims  the  ownership  of,  and 
the  right  to  take  and  use  all  the  waters  of,  the  lake.  The 
purpose  of  the  action,  as  stated  in  the  complaint,  is  to  have 
the  plaintiffs'  alleged  rights  determined.  The  corporation 
defendant  filed  a  cross-complaint  alleging  ownership  of  all 
the  water  of  the  lake,  and  asking  that  its  right  be  also  deter- 
mined. ^Judgment  was  given  declaring  that  the  plaintiffs 
have  the  right  to  take  from  the  lake  and  use  upon  their  land 
<is  much  water  as  they  could  beneficially  use  thereon,  not  ex- 
ceeding a  continuous  flow  of  two  hundred  and  fifty  miner's 
inches,  and  enjoining  the  defendants  from  interfering  with 
the  plaintiffs'  right  to  such  use,  and  that  the  defendant  cor- 
poration take  nothing  by  its  cross-complaint.  The  defend- 
ants appealed  from  the  judgment  within  sixty  days  after  its 
rendition  and  present  the  evidence  in  the  record  by  a  bill  of 
exceptions. 

The  plaintiffs  derive  their  title  to  the  land  from  Carmen 
Amesti  de  McKinlay,  who  on  May  13,  1901,  leased  the  land  to 
S.  J.  Duckworth,  and  on  August  6th,  1901,  conveyed  it  to 
the  plaintiff  Flora  McKinlay  Duckworth,  subject  to  the  lease. 
In  1885,  while  Carmen  Amesti  de  McKinlay  was  the  ownerv 
in  fee  of  the  land,  she  made  conveyances  to  the  defendants 
Smith  and  Montague,  whereby  she  granted  to  them  "all  and 
singular  the  water  and  riparian  and  water  rights  and  privi- 
leges of  every  kind,  character  and  description  which  belong, 
or  in  any  manner  pertain  to"  the  three  hundred  and  twenty 
acres  of  land,  the  same  being  particularly  described  therein, 
reserving,  however,  the  right  to  water  for  domestic  use  and 
watering  stock  thereon.  On  January  21,  1897,  Smith  and  v 
Montague  conveyed  to  the  Watsonville  Water  and  Light  Com- 
pany all  the  waters,  rights,  and  privileges  conveyed  to  them 
by  Carmen  Amesti  de  McKinlay  as  aforesaid.  Smith  and 
Montague  thereupon,  so  far  as  appears,  ceased  to  have  any 


DUCKWORTH  v.  WATSONVILLE  WATER  AND  LIGHT  Co.     213 

interest  in  the  property  in  controversy.  They  joined  in  the 
answer  and  join  also  in  the  appeal.  There  are  some  indica- 
tions in  the  evidence  that  their  holding  prior  to  1897  was  for 
the  benefit  of  the  water  company.  In  any  event,  as  they 
have  no  present  interest,  their  position  in  the  case  need  not 
be  further  discussed.  It  is  claimed  that  the  evidence  does 
not  sustain  the  findings.  As  to  several  of  them  we  think  this 
contention  is  well  founded. 

1.  There  was  an  outlet  to  Pinto  lake,  through  which  water 
usually  flowed  from  the  lake  during  the  rainy  season  of  each 
year,  but  which  was  dry  at  all  other  times.  One  Grimmer  v 
owned  a  tract  of  land  which  abutted  upon  this  outlet  at  a 
point  some  distance  below  the  lake.  On  March  21,  1903. 
Grimmer  conveyed  to  S.  J.  Duckworth  "all  riparian  rights 
and  other  water  rights  and  water"  which  he  possessed  in  this 
outlet  as  appurtenant  or  belonging  to  this  tract  of  land. 
This  conveyance  was  made  after  the  beginning  of  the  action, 
but  before  the  filing  of  the  cross-complaint,  and  in  his  an- 
swer to  the  cross-complaint  Duckworth  averred  that  by  virtue 
thereof  he  was  a  riparian  owner  to  the  waters  of  the  lake. 
The  court  found,  in  accordance  with  this  answer,  that  the"' 
plaintiff  S.  J.  Duckworth  "is  a  riparian  owner  of  the  waters 
of  said  Pinto  lake,  its  tributaries  and  outlet,"  by  virtue  of 
this  deed.  Even  if  we  consider  the  lake  with  its  tributaries 
and  outlet  as  forming  one  continuous  stream  of  water,  as  the 
lower  court  found  it  to  be,  this  finding  is  not  technically  true. 
Every  owner  of  land  upon  a  stream  is  in  some  respects  in- 
terested in  the  entire  stream.  He  has  the  right  to  use  the 
water  as  it  passes  his  land  for  domestic  purposes  thereon,  and 
to  take  out  a  reasonable  portion  thereof  for  the  irrigation  of 
his  abutting  land ;  and  for  the  protection  of  this  right,  which 
begins  only  when  the  water  reaches  his  land,  he  has  a  certain 
right  with  regard  to  all  the  waters  of  the  stream  above  his 
land,  the  right  to  insist  that  it  shall  not  be  polluted  to  his 
injury  or  diminished  from  use  by  other  riparian  owners 
above,  so  as  to  deprive  him  of  his  just  portion,  and  perhaps, 
as  to  other  than  riparian  owners,  the  right  to  prevent  any 
substantial  diminution  of  the  amount  of  water  which  would 
naturally  flow  to  his  land.  If  nothing  more  than  this  was 
meant  by  the  finding  in  question,  we  could  not  say  that  it  was 


214  WATER  EIGHTS  AND  IRRIGATION  LAW. 

not  supported  by  some  evidence,  nor  that  it  was  not  a  cor- 
rect general  statement  of  the  right  of  Duckworth  under  the 
Grimmer  deed.  But  the  finding  is  that  Duckworth  thereby 
became  a  "riparian  owner"  of  the  waters  of  the  lake,  and  it 
appears  that  under  it  he  claims  some  right,  as  against  the 
defendant  water  company,  to  take  water  from  the  lake  for 
use,  not  on  the  Grimmer  land,  but  on  the  Duckworth  land, 
which  abuts  on  the  lake  far  from  the  outlet,  and  that  not 
only  during  the  rainy  season,  or  at  such  times  as  there  is 
water  flowing  to  the  Grimmer  land,  but  during  all  seasons 
and  when  the  outlet  is  entirely  dry.  The  court  below  seems 
to  have  intended  this  finding  to  declare  some  such  right. 
This  claim  is  contrary  to  the  doctrine  of  riparian  rights  and 
to  the  general  principles  of  law  as  well.  Neither  a  riparian  > 
proprietor  nor  an  appropriator  has  title  or  ownership  in  the 
water  of  the  stream  before  it  reaches  his  land,  or  point  of 
diversion,  respectively.  This  has  been  expressly  decided  with 
respect  to  appropriators.  (Parks  M.  Co.  v.  Hoyt,  57  Cal. 
46 ;  Riverside  W.  Co.  v.  Gage,  89  Cal.  418,  26  Pac.  889 ;  Mc- 
Guire  v.  Brown,  106  Cal.  670,  39  Pac.  1060,  30  L.  R.  A. 
384.)  The  same  rule  applies  to  the  riparian  owner.  As  a 
riparian  owner,  Grimmer  had  no  title  to  the  water,  except 
as  it  passed  in  front  of  his  land  and. constituted  the  stream. 
The  right  or  title  to  the  stream  as  it  passed  was  a  part  and 
parcel  of  his  land,  a  part  of  the  realty.  (See  cases  last 
cited.)  Being  a  part  of  his  realty  on  his  land,  it  was  also 
part  of  the  realty  of  other  riparian  owners  at  the  points 
where  it  passed  over  their  lands.  Hence,  the  title  of  each  to 
the  water  exists  only  during  such  passage,  and  the  right  of 
each  in  the  water  during  its  course  above  consists  only  of 
the  right  to  use  such  means  as  are  necessary  to  preserve  it 
until  it  reaches  his  land.  Grimmer  had  the  right  to  use  a 
reasonable  portion  of  the  water  running  in  the  outlet  by  his 
land  for  the  irrigation  of  his  land  riparian  thereto,  and  to 
take  the  whole  of  it,  if  necessary,  for  domestic  purposes. 
This  right  exists  because  the  stream  runs  by  the  land,  and 
thus  gives  the  natural  advantage  resulting  from  the  relative 
situation.  When  the  stream  ceased  and  the  channel  became 
dry,  he  for  the  time  being  ceased  to  be  a  riparian  owner,  so 
far  as  the  present  use  of  the  water  was  concerned.  His  land 


DUCKWORTH  v.  WATSONVILLE  WATER  AND  LIGHT  Co.    215 

did  not  at  those  times  border  upon  any  stream.  It  did  not 
then  possess  any  natural  right  to  the  use  of  the  water  stand- 
ing in  pools  or  lakes  at  points  above  his  land.  During  such 
dry  periods  he  could  obtain  the  use  of  water  from  such  pools 
or  lakes  only  by  convention  with  the  owners  of  the  lands  abut- 
ting upon  them.  He  would  not  have  it  by  virtue  of  any  right 
pertaining  to  his  own  land.  Furthermore,  his  riparian  right 
is  limited  to  his  riparian  land.  It  gave  no  right  to  use  any 
of  the  water  of  the  stream  for  any  purpose  upon  land  not 
riparian,  nor  upon  any  riparian  land  other  than  his  own. 
No  one  can  sell  or  convey  to  another  that  which  he  does  not 
himself  own.  Grimmer  could  not  by  a  transfer  of  his  ripa- 
rian rights  sell  to  the  plaintiff,  as  against  third  persons  hav- 
ing interests  in  the  water,  the  right  to  use  the  water  upon  any 
land,  riparian  or  nonriparian,  except  his  own,  to  which  it 
originally  attached.  His  deed  operated  to  prevent  him  from 
complaining  of  a  diversion,  but  it  did  not  affect  other  par- 
ties. It  does  not  appear  that  Grimmer  had  any  water  rights, 
except  his  right  as  riparian  owner  to  the  use  of  the  water 
of  the  outlet.  It  follows,  therefore,  that  Duckworth  did  not 
obtain  anything  by  the  Grimmer  deed  except  the  right  to 
use  the  water  of  the  outlet  on  the  Grimmer  land,  when  any 
water  was  flowing  therein,  and  an  estoppel  against  Grimmer 
to  prevent  complaint  by  him  against  any  use  of  such  water 
which  Duckworth  might  make  to  the  injury  of  the  Grimmer 
riparian  right  as  above  denned.  It  did  not  in  any  respect 
add  to  his  rights  to  take  water  from  the  lake  for  use  on  the 
Duckworth  land,  as  against  the  defendants,  or  as  against 
anyone  excepting  Grimmer  and  his  successors  in  interest. 

2.  The  findings  further  state  that  the  water  company  has 
never  exercised  or  used  any  of  the  water  rights  derived  from 
the  deeds  from  Carmen  Amesti  de  McKinlay  to  Smith  and 
Montague.  This  is  true  in  the  literal  sense  that  it  has  not 
used  any  water  upon  the  land  to  which  these  rights  prior  to 
those  deeds  attached.  But  it  appears  from  the  evidence  that 
the  water  company  was  pumping  water  from  the  lake  during 
the  eight  years  extending  from  December,  1894,  to  December, 
1902.  The  amount  is  not  shown,  but  it  was  enough,  during 
part  of  the  time  at  least,  according  to  the  testimony  of 
William  A.  White,  its  superintendent,  to  furnish  water  to 


216  WATER  RIGHTS  AND  IRRIGATION  LAW. 

several  strawberry-growers  for  irrigation  of  their  plants, 
and  so  much  that  if  the  plaintiffs  took  the  two  hundred  and 
fifty  inches  they  claim,  the  two  diversions  would  not  leave 
much  water  in  the  lake  at  the  end  of  the  dry  season.  This 
evidence  is  not  as  definite  as  it  should  have  been,  but  there 
being  no  evidence  to  the  contrary,  it  established  the  fact  that 
the  company  had  taken  a  substantial  quantity  of  water  from 
the  lake  during  the  time  specified.  Such  taking  would  have 
been  contrary  to  riparian  rights  attached  to  the  Duckworth 
land,  if  they  had  remained  unsevered  therefrom.  By  rea- 
son of  its  purchase  of  these  riparian  rights  the  company  pos- 
sessed the  right,  so  far  as  that  land  and  its  owners  were 
concerned,  to  use  the  whole  or  any  part  of  the  waters  of  the 
lake  except  such  as  were  necessary  for  domestic  use  and  for 
the  watering  of  stock  thereon.  The  pumping  of  the  water 
was  done  in  the  exercise  of  this  right,  and  it  was  a  right  ob- 
tained by  virtue  of  the  McKinlay  deeds.  This  finding  is 
therefore  contrary  to  the  evidence. 

3.  There  is  a  finding  to  the  effect  that,  after  the  execution 
of  the  deeds  by  Carmen  Amesti  de  McKinlay  to  Smith  and 
Montague,  in  1885,  she  continued  in  possession  of  the  water 
and  water  rights  thereby  granted  to  them,  and  that  she  and 
the  plaintiffs,  as  her  successors,  did  not  relinquish  posses- 
sion thereof  to  the  grantors,  but  have  ever  since  then  re- 
mained in  possession  thereof,  and  that  they  have  been  in  the 
open,  notorious,  hostile,  and  adverse  possession  thereof  for 
more  than  five  years  immediately  before  the  commencement 
of  this  action.  This  finding  has  no  support  in  the  evidence. 
They  did  indeed  remain  in  possession  of  the  land,  and  con- 
tinued to  exercise  all  ordinary  acts  of  ownership  over  it,  in- 
cluding the  use  of  the  water  of  the  lake  for  the  watering  of 
stock.  This  latter  use  of  the  water,  however,  was  reserved 
in  the  deed,  and  hence  it  was  not  one  of  the  rights  granted. 
Even  if  it  had  been  granted,  the  adverse  use  for  the  water- 
ing of  stock  alone  could  gain  a  right  only  to  the  extent  of  the 
use,  and  it  would  not  confer  any  right  to  the  additional  use 
of  water  for  the  irrigation  of  land.  There  is  no  evidence 
that  Mrs.  McKinlay  or  either  of  the  plaintiffs  ever  made  any 
use  of  the  water  other  than  for  the  watering  of  stock,  or 
claimed  the  right  to  do  so  as  against  the  defendants,  until 


DUCKWORTH  v.  WATSONVILLE  WATER  AND  LIGHT  Co.    217 

November,  1902,  a  few  months  before  this  action  was  begun. 
The  finding  seems  to  have  been  based  on  the  fact  that  the  \ 
defendants  never  entered  upon  the  land  of  the  plaintiffs  for 
the  purpose  of  exercising  or  asserting  the  right  to  use  the 
waters  of  the  lake  which  they  obtained  under  the  McKinlay 
deeds.  But  it  was  not  requisite  to  the  exercise  of  the  rights 
granted  by  the  deeds  that  they  should  enter  upon  the  land, 
unless  it  became  necessary  to  do  so  in  order  to  get  the  water 
from  the  lake.  The  deed  was  evidently  procured  to  protect 
the  grantees  from  interference  in  their  proposed  diversion 
of  water  from  the  lake.  They  could  get  the  water  from  any 
other  point  on  the  lake  as  well  as  from  the  limits  of  the  Mc- 
Kinlay land,  and  it  appears  that  they  took  it  from  the  lower 
end  of  the  lake.  [This  was  a  taking  from  the  McKinlay  land 
as  well  as  from  all  the  other  land  on  the  borders  of  the  lake. 
The  force  of  gravity  would  accomplish  that."  The  use  which 
was  made  of  the  land  by  the  plaintiffs  and  McKinlay  was 
not  antagonistic  to  the  right  which  the  defendants  had  to 
the  water  under  the  grant.  It  is  not  true,  therefore,  that 
the  grantor  and  her  predecessors  continued  or  remained  in 
possession  of  the  rights  of  the  grantee,  nor  that  said  rights 
were  not  relinquished  to  the  grantees,  nor  that  the  possession 
of  the  plaintiffs  and  their  predecessor  extended  to  the  water 
rights  granted,  or  was  hostile  and  adverse  to  the  grantee,  or 
open  and  notorious  with  respect  thereto.  According  to  the 
evidence,  their  actual  use  of  the  water,  if  any,  did  not  begin 
under  their  adverse  claim  until  the  day  of  the  trial  in  the 
lower  court. 

4.  There  is  some  evidence  that  Pinto  lake,  with  its  tribu- 
taries and  outlet,  during  the  rainy  season,  constituted  a  run- 
ning stream  of  water.  It  is  clear  that  during  the  dry  seasons 
there  was  no  water  flowing  out  of  the  lake,  but  there  is  evi- 
dence that  during  that  period  there  was  a  slight  flow  from  a 
tributary  into  the  lake.  "We  cannot  agree  with  the  appel- 
lant in  his  contention  that  the  finding  that  the  lake,  or  its 
tributaries,  constituted  a  running  stream  is  not  sustained  by 
the  evidence.  We  think  the  better  doctrine  in  respect  to  the 
character  of  a  stream  from  which  the  statute  provides  for 
appropriations  is  that  it  is  not  necessary  that  the  stream 
should  continue  to  flow  to  the  sea  or  to  a  junction  with 


218  .WATER  RIGHTS  AND  IRRIGATION  LAW. 

some  other  stream.  It  is  sufficient  if  there  is  a  flowing 
stream;  and  the  fact  that  it  ends  either  in  a  swamp,  in  a 
sandy  wash  in  which  water  disappears,  or  in  a  lake  in  which 
it  is  accumulated  upon  the  surface  of  the  ground,  will  not 
defeat  the  right  to  make  the  statutory  appropriation  there- 
from, and  we  can  see  no  reason  why  the  appropriation  in 
such  a  case  may  not  be  made  from  the  lake  in  which  the 
stream  terminates,  and  which  therefore  constitutes  a  part  of 
it,  as  well  as  from  any  other  part  of  the  watercourse. 

5.  The  only  use  which-  the  water  company  makes  of  the 
water  is  to  take  it  to  nonriparian  lands,  to  be  used  thereon 
for  irrigation.  Respondents  claim  that  the  only  right  of  the 
water  company  to  the  water  shown  in  the  case  consists  of 
the  riparian  rights  pertaining  to  the  narrow  strip  of  land  be- 
longing to  the  water  company  surrounding  the  greater  part 
of  the  lake,  and  the  riparian  rights  under  the  McKinlay  deeds, 
and  that  the  use  made  of  it  is  not  in  the  exercise  of  either 
of  these  rights,  but  is  inconsistent  with  each  of  them.  In  re-^ 
gard  to  this  claim,  it  is  to  be  observed  that  so  far  as  the  use 
made  of  the  water  by  the  water  company  may  affect  the 
rights  claimed  by  the  Duckworths  as  riparian  owners  of  the 
McKinlay  land,  they  have  no  ground  of  complaint,  being 
estopped  by  the  McKinlay  deeds  and  not  having  regained  the 
rights  by  adverse  possession.  The  estoppel  does  not  extend 
to  the  water  necessary  for  domestic  use  and  for  stock,  but 
their  right  to  that  extent  is  not  in  dispute,  nor  have  they 
been  deprived  of  it  by  the  water  company.  But  S.  J.  Duck- 
worth claims  a  right  to  a  part  of  the  water  by  appropriation, 
and  with  respect  to  the  right  thus  claimed  he  has  a  status 
which  entitles  him  to  challenge  the  right  of  the  water  com- 
pany. His  privity  with  the  McKinlay  deed  does  not  estop  V 
him  from  making  an  appropriation  of  any  water  in  the  lake 
that  may  be  subject  to  appropriation,  nor  from  demanding 
that  the  water  company  shall  not  make  a  greater  use  of  the 
water  than  it  is  authorized  to  do  by  the  rights  which  it  is 
shown  to  have,  if  such  use  interferes  with  an  appropriative 
right  possessed  by  him.  But  the  claim  that  the  water  com- 
pany has  not  established  any  other  right  is  not  maintainable. 
Its  cross-complaint  alleges  that  it  is,  and  for  a  long  time 


DUCKWORTH  v.  WATSONVILLE  WATER  AND  LIGHT  Co.    219 

has  been,  "the  owner  and  entitled  to  the  exclusive  use 
of  all  the  waters"  of  Pinto  lake.  The  plaintiffs  in  their 
answer  thereto  deny  that  the  water  company  is,  or  has  been, 
"the  owner  and  entitled  to  the  exclusive  use  of  all  the  waters" 
of  the.  lake.  That  is  not  a  good  traverse  of  the  allegation. 
It  is  an  admission  that  the  water  company  is  entitled  to  sub- 
stantially all  of  the  water.  (Fitch  v.  Bunch,  30  Cal.  208; 
Blood  v.  Light,  31  Cal.  115;  Fish  v.  Redington,  31  Cal.  185; 
Reed  v.  Calderwood,  32  Cal.  109;  Doll  v.  Good,  38  Cal.  287.) 
This  allegation  of  the  cross-complaint,  therefore,  stands  as  an 
admitted  fact  of  the  case,  except  so  far  as  it  is  inconsistent 
with  the  affirmative  allegations  of  the  answer  thereto  and  of 
the  original  complaint.  The  effect,  for  the  purposes  of  the 
trial,  was  to  establish  the  fact  that  the  water  company  owns, 
and  has  the  exclusive  right  to  use  for  any  purpose  and  at 
any  place,  all  of  the  water  of  the  lake,  excepting  such  por- 
tion thereof,  or  right  thereto,  as  is  alleged  and  was  proven 
to  belong  to  the  plaintiffs,  or  either  of  them.  Inasmuch  as 
the  evidence  did  not  show,  and  the  court  did  not  find,  that 
the  alleged  claims  of  plaintiffs  included  all  the  waters  of  the 
lake,  the  judgment  that  the  defendants  take  nothing  is  con- 
trary to  the  evidence  and  to  this  admission  of  the  pleadings. 
The  existing  rights  of  other  riparian  owners  not  parties  to 
this  suit  are  not  material  to  this  case. 

6.  The  right  to  appropriate  water  under  the  provisions  of 
the  Civil  Code  is  not  confined  to  streams  running,  over  public 
lands  of  the  United  States.  It  exists  wherever  the  appro- 
priator  can  find  water  of  a  stream  which  has  not  been  ap- 
propriated and  in  which  no  other  person  has  or  claims 
superior  rights  and  interests.  And  the  right  cannot  be  dis- 
puted except  by  one  who  has  or  claims  a  superior  right  or 
interest,  and  by  him  only  so  far  as  there  is  a  conflict.  It 
cannot  be  vicariously  conteste.d  by  another  on  behalf  of  the 
owner  of  the  better  right.  The  effect  of  an  appropriation 
under  the  statute,  when  completed,  is  that  the  appropriator 
thereby  acquires  a  right  superior  to  that  of  any  subsequent 
appropriator  on  the  same  stream.  But  he  acquires  thereby 
no  right  whatever  as  against  rights  existing  in  the  water  at 
the  time  his  appropriation  was  begun.  An  appropriation 


220  WATER  RIGHTS  AND  IRRIGATION  LAW. 

does  not  of  itself  deprive  any  private  person  of  his  rights; 
it  merely  vests  in  the  appropriator  such  rights  as  have  not 
previously  become  vested  in  private  ownership,  either  by 
virtue  of  some  riparian  right  or  because  of  prior  statutory  or 
common-law  appropriation  and  use.  It  affects  and  devests 
the  riparian  rights  otherwise  attaching  to  public  lands  of  the 
United  States,  solely  because  the  act  of  Congress  declares 
that  grants  of  public  lands  shall  be  made  subject  to  all  water 
rights  that  may  have  previously  accrued  to  any  person  other 
than  the  grantee.  An  appropriation  of  water  and  use  there- 
under does  not  become  effective  to  devest  private  rights  in 
the  stream,  unless  it  has  been  continued  adversely  thereto  for 
the  period  of  five  years  under  such  circumstances  as  to  gain  a 
title  by  prescription,  and  then  only  to  the  extent  of  the  use. 
The  amount  claimed  in  the  notice  is  no  measure  of  the  right. 

It  follows  that  the  attempted  appropriation  by  S.  J.  Duck- 
worth of  a  part  of  the  water  of  the  lake  did  not  devest  or 
affect  the  existing  rights  of  the  water  company,  either  as 
riparian  owners  or  by  virtue  of  a  prior  appropriation  or  use. 
And  so  far  as  his  claim  was  adverse  to,  and  in  conflict  writh, 
the  prior  rights  and  interests  of  the  water  company,  it  was 
entitled  to  a  decree  quieting  its  title  against  him  and  en- 
joining him  from  asserting  such  adverse  title.  This  applies 
to  the  riparian  right  which  attached  to  its  strip  of  land  par- 
tially surrounding  the  lake  as  well  as  to  any  other  prior 
right  which  it  possessed  to  the  water.  The  fact  that  the  com- 
pany had  not  used  the  water  on  this  narrow  strip  did  not 
affect  the  riparian  right.  'A  riparian  right  is  neither  gained  • 
by  use  nor  lost  by  disuse.  And  for  the  protection  of  these 
riparian  rights  the  water  company  is  entitled  to  a  judgment 
declaring  Duckworth's  appropriation  subject  to  the  riparian 
rights  pertaining  to  its  lands,  and  subject  to  all  other  prior 
rights  of  the  water  company,  so  that  the  continued  use  of 
the  water  by  Duckworth  shall  not  be  adverse  and  shall  not 
ripen  into  an  easement  which,  in  effect,  would  devest  the 
rights  of  the  water  company. 

7.  We  have  said  that,  because  of  the  McKinlay  deeds,  and  ** 
so  far  as  the  claim  of  plaintiffs  as  riparian  owners  is  con- 
cerned,   the   water    company   can   use   the   water    for    any 


DUCKWORTH  v.  WATSONVILLE  WATER  AND  LIGHT  Co.    221 

purpose,  at  any  place,  and  in  any  quantity  which  leaves 
plaintiffs  enough  for  stock  and  domestic  purposes.")  But  the 
mere  fact  that  the  company  is  riparian  owner  on  the  lake 
gives  it  no  right  whatever  to  the  water  of  the  lake,  except  for 
actual  beneficial  use  upon  the  land  to  which  the  riparian 
rights  attach."!  The  evidence  does  not  show  that  it  is  using 
the  water  on  that  land  at  all.  It  is  carrying  the  water  to 
other  lands  and  places  for  use  and  sale.  The  admission  of 
the  pleadings  above  referred  to  relieves  it  of  the  necessity  of 
establishing  its  right  to  do  this,  except  as  it  may  be  affected 
by  evidence  in  support  of  the  specific  rights  alleged  by  the 
plaintiffs.  But  the  right  it  actually  exercises  is  not  a  right 
derived  from  the  fact  of  its  riparian  ownership  of  the  greater 
part  of  the  lake  shore  and  bed. 

8.  The  claim  of  the  respondents  that  the  grant  by  Mrs. 
McKinlay  of  the  rights  pertaining  to  the  land  described  in 
the  deeds  extended  only  to  the  water  then  standing  in  the 
lake,  and  that  as  soon  as  that  water  was  exhausted  by  use, 
run-off,  or  evaporation,  the  rights  ceased  to  exist,  is  utterly 
baseless,  and  needs  no  discussion  further  than  to  deny  it. 

9.  In  its  conclusions  of  law  the  court  declared  that  the 
defendants  are  estopped  from  claiming  any  rights  under  the 
McKinlay  deeds.     We  find  nothing  in  the  evidence  justify- 
ing this  conclusion.     The  plaintiffs  did  not  make  an  adverse 
claim  until  November,  1902,  and  the  water  company  about 
the  same  time  served  on  them  written  notice  of  its  claim  to 
the  water  under  the  said  deed.     This  may  not  have  been 
necessary,  but  it  undoubtedly  prevented  any  estoppel  from 
arising  in  their  favor  by  reason  of  any  subsequent  expendi- 
ture of  money  by  them  in  the  diversion  of  water  in  pursu- 
ance of  their  adverse  claim,  granting  that  such  expenditure 
would  otherwise  have  created  an  estoppel. 

10.  We  have  said  that  the  water  company  is  entitled  to  a 
judgment  protecting  its  riparian  right,  although  it  has  not 
used,  and  does  not  immediately  propose  to  use,  the  water  on 
its  riparian  land.     This  rule  does  not   apply  to  any  right 
which  it  has  acquired  by  appropriation  or  use  upon  other 
lands,  and  this  appears  to  be  the  source  of  the  right  which  it 
has  been  exercising.     Such  right  depends  upon  use  and  ceases 


222  WATER  RIGHTS  AND  IRRIGATION  LAW. 

with  disuse.  (Civ.  Code,  sec.  1411.)  It  extends  only  to  the 
water  actually  taken  and  used.  The  consequence  is  that,  so 
far  as  the  protection  of  this  right  and  the  water  necessary  to 
supply  this  use  are  concerned,  the  water  company  is  not  en- 
titled to  prevent  an  appropriation  or  use  by  others  of  the 
surplus  of  the  waters  of  the  lake,  if  there  is  any.  So  long 
as  there  is  enough  to  supply  it  with  the  quantity  of  water 
which  it  has  been  so  using,  it  has,  in  the  protection  of  this 
right,  no  concern  with  the  disposition  of  the  remainder.  It 
has  the  right,  of  course,  to  insist  upon  a  reasonable  ample 
quantity  to  last  through  the  entire  season,  until  rains  renew 
the  supply,  and  also  to  enjoin  a  depletion  of  the  lake  which 
will  lower  the  water  surface  so  as  to  substantially  increase 
the  cost  of  making  the  diversion  it  is  entitled  to  make. 

11.  It  may  be  that  upon  another  trial  the  sufficiency  of 
the  notice  of  appropriation  posted  by  S.  J.  Duckworth  may 
not  be  important.  But  as  this  cannot  be  decided  here,  it  is 
necessary  to  notice  the  objections  urged  against  it.  The  no- 
tice states  that  the  water  claimed  therein  is  to  be  used  for 
irrigation  upon  the  land  owned  by  Mrs.  Duckworth,  describ- 
ing it.  This  is  a  sufficient  statement  of  the  purpose  for  which 
the  water  was  claimed  and  the  place  of  intended  use,  and  it 
is  not  vitiated  by  the  additional  statement  in  the  notice  that 
it  was  also  to  be  used  for  irrigation  by  other  parties  to  whom 
Duckworth  might  furnish  it  upon  other  land,  which  was  not 
described.  It  was  a  good  notice  for  the  appropriation  of 
water  for  use  on  the  place  designated,  at  all  events.  It  states 
that  the  water  is  to  be  conveyed  to  the  place  of  use  "by  a 
six-inch  pipe,  or  by  a  pipe  of  other  dimensions."  This  we 
consider  sufficient  to  authorize  a  diversion  of  the  quantity 
that  could  be  carried  in  a  six-inch  pipe,  and  not  exceeding 
the  two  hundred  and  fifty  miner's  inches  claimed  as  the  maxi- 
mum. Whether  or  not  it  would  justify  a  diversion  within 
the  amount  limited  if  carried  in  a  pipe  more  than  six  inches 
in  diameter,  is  a  question  not  presented,  inasmuch  as  it  does 
not  appear  that  such  pipe  was  proposed  to  be  used.  .  .  . 

In  conclusion,  we  deem  it  proper  to  say  that,  upon  another 
trial,  if  the  court  shall  decide  that  either  of  the  parties 
possesses  rights  to  the  water,  acquired  by  appropriation  under 


SIMMONS  v.  WINTERS.  223 

the  statute  or  by  diversion  and  use,  it  will  be  necessary  to 
ascertain  and  declare  the  amount  of  water  covered  by  the 
right  owned  by  each  respectively. 

It  is  not  necessary  to  mention  the  other  points  discussed 
in  the  briefs. 

The  judgment  is  reversed  and  a  new  trial  ordered. 

k^/t 


Appropriation — Watercourse  Denned. 

SIMMONS  v.  WINTERS. 

(21  Or.  35,  28  Am.  St.  Rep.  727,  27  Pac.  7.) 

LORD,  J. — This  is  a  suit  in  equity,  brought  by  the  plain- 
tiff to  enjoin  the  defendant  from  diverting  the  waters  of  a 
certain  stream  commonly  known  as  "Sheep  creek  ditch"  and 
for  damages.  The  waters  of  Sheep  creek  ditch  flow  through 
the  lands  of  the  plaintiff  and  defendant.  The  theory  upon 
which  the  suit  is  predicated  is  that  Sheep  creek  ditch  is  an 
ancient  and  natural  watercourse,  with  well-defined  banks 
and  channels,  to  the  uninterrupted  flow  of  which  the  plain- 
tiff is  entitled  as  a  riparian  owner,  and  by  the  diversion  of 
which  he  has  already  been  damaged,  and  will  be  irreparably 
damaged,  unless  the  defendant  be  restrained  and  enjoined. 
The  facts  alleged  being  denied,  the  defense  set  up  was  prior 
appropriation  of  the  waters  of  Little  Sheep  creek,  by  means 
of  dam,  ditches,  and  dry  ravines,  or  draws,  into  what  is  com- 
monly known  as  "Sheep  creek  ditch"  for  the  purpose  of 
irrigation,  stock  and  domestic  uses.  The  legal  aspect  of  the 
case  involves  an  inquiry  into  (1)  what  constitutes  a  water- 
course; (2)  the  quantity  of  water  to  which  an  appropriation 
is  restricted;  and  (3)  the  nature  of  the  water  right  which 
may  pass  as  appurtenant  to  the  premises  conveyed. 

Considering  these  in  their  order,  the  inquiry  is,  What  is 
included  within  the  term  "watercourse"?  .Where  there  is 
a  living  stream  of  water,  within  well-defined  banks  and  chan- 
nel, no  matter  how  limited  may  be  the  flow  of  its  water,  there 
is  no  difficulty  in  determining  its  character  as  a  watercourse ; 


224  WATER  EIGHTS  AND  IRRIGATION  LAW. 

but  when  the  stream  is  of  the  class  which  periodically  or 
occasionally  flows  through  ravines,  gullies,  hollows,  or  de- 
pressions of  land,  and  by  its  flow  assumes  a  definite  channel, 
such  as  indicates  the  action  of  running  water,  there  is  often 
some  difficulty  of  distinction.  A  watercourse  is  defined  by 
Bigelow,  J.,  as  "a  stream  of  water  usually  flowing  in  a  definite 
channel,  having  a  bed  or  sides  or  bank,  and  usually  discharg- 
ing itself  into  some  other  stream  or  body  of  water."  (Luther 
v.  Winnisimmet  Co.,  9  Gush.  174.)  It  is  "a  living  stream 
with  defined  banks  and  channels,  not  necessarily  running  all 
the  time,  but  fed  from  other  and  more  permanent  sources 
than  mere  surface  water."  .  .  . 

The  conclusion  to  be  deduced  from  these  decisions  is  that 
(a  watercourse  is  a  stream  of  water  usually  flowing  in  a  par- 
ticular  direction,  with  well-defined  banks  and  channels,  but 
that  the  water  need  not  flow  continuously, — the  channel  may 
sometimes  be  dry;  that  the  term  "watercourse"  does  not 
include  water  descending  from  the  hills  down  the  hollows 
and  ravines,  without  any  definite  channel,  only  in  times  of 
rain  and  melting  snow;  but  where  water,  owing  to  the  hilly 
or  mountainous  configuration  of  the  country,  accumulates  in 
large  quantities  from  rain  and  melting  snow,  and  at  regular 
seasons  descends  through  deep  gullies  or  ravines  upon  the 
lands  below,  and  in  its  onward  flow  carves  out  a  distinct  and 
well-defined  channel  which  even  to  the  casual  glance  bears 
the  unmistakable  impress  of  the  frequent  action  of  running 
water,  and  through  which  it  has  flowed  from  time  imme- 
morial, such  a  stream  is  to  be  considered  a  watercourse,  and  to 
be  governed  by  the  same  rules. 

2.  In  this  state  the  doctrine  of  the  right  to  water  by  prior 
appropriation  for  mining  and  irrigating  lands  has  not  been 
adopted  or  applied,  except  as  the  parties  have  acquired  their 
rights  under  the  act  of  Congress  of  1866.  Nor  has  there 
been  any  legislation  by  the  state  upon  the  subject.  By  the 
act  of  Congress,  the  right  to  water  by  prior  appropriation 
from  the  streams  upon  the  public  domain  was  recognized  and 
established.  .  .  . 

As  there  must  be  an  actual  diversion  of  the  water  from  its 
natural  channel  by  means  of  a  ditch  or  other  structure  to 
effect  the  appropriation,  any  dry  ravine,  gulch,  or  hollow  in 


SIMMONS  v.  WINTERS.  225 

lands  may  be  used  for  this  purpose  as  a  part  of  the  ditch  for 
conducting  the  water.  Not  only  may  these  be  used  by  the 
appropriator  as  a  part  of  his  ditch,  but  he  may  use  the  lower 
portion  of  the  same  bed  or  natural  channel  from  which  the 
water  is  taken.  (Pom.  Rip.  Rights,  sec.  48.)  It  is  thus  seen 
that,  in  order  to  make  a  valid  appropriation  of  water,  it  is 
required  to  be  made  for  some  beneficial  purpose  then  existing 
or  contemplated,  and  that  the  amount  of  water  appropriated 
must  be  restricted  to  the  quantity  needed  for  such  purpose. 

3.  Where  there  is  no  express  grant  or  sale  of  a  ditch  or 
water  right  mentioned  in  the  deed  of  the  land,  other  than 
may  be  included  in  the  use  of  the  word  "appurtenances," 
the  question  is  whether  the  interest  of  the  grantor  in  such 
ditch  and  right  to  the  use  of  the  water  would  be  conveyed  or 
pass  to  the  grantee  by  such  deed.  The  maxim  of  the  law  is 
that  whoever  grants  a  thing  is  supposed,  also,  tacitly,  to  grant 
that  without  which  the  grant  would  be  of  no  avail.  Where 
the  principal  thing  is  granted,  the  incident  shall  pass.  (Co. 
Litt.  152a.)  A  grant  of  real  estate  will  include  whatever 
the  grantor  has  power  to  convey  which  is  reasonably  neces- 
sary to  the  enjoyment  of  the  thing  granted.  (3  Washb.  Real 
Prop.  627.)  By  the  grant  of  a  mill,  or  the  grant  of  land 
with  a  mill  thereon,  the  waters,  floodgates,  and  the  like,  which 
are  of  necessary  use  to  the  mill,  pass  as  incident  to  the  prin- 
cipal thing  granted.  .  .  .  The  general  rule  of  law  is  that, 
when  a  party  grants  a  thing,  he,  by  implication,  grants  what- 
ever is  incident  to  it  and  necessary  to  its  beneficial  enjoyment. 
The  incident  goes  with  the  principal  thing.  The  idea  and 
definition  of  an  easement  to  real  estate  granted  is,  a  privilege 
off  and  beyond  the  local  boundaries  of  the  lands  con- 
veyed. .  .  . 

As  this  phase  of  the  case  may  be  easily  disposed  of  upon 
the  undisputed  facts,  it  will  be  sufficient  to  say  that  the 
evidence  shows  that  Clark  Rowland  and  Joseph  Cox  were 
homestead  settlers  upon  the  public  domain,  to  whom,  in  due 
course  of  time,  were  issued  patents  by  the  government  to  the 
lands  upon  which  they  had  respectively  settled  in  1877 ;  that 
the  defendant,  W.  H.  Winters,  derives  his  title  to  the  lands 
now  owned  and  occupied  by  him,  the  same  being  the  land 
15 


226  WATER  RIGHTS  AND  IRRIGATION  LAW. 

settled  upon  by  the  said  Rowland  and  Cox,  by  deeds  of  con- 
veyance from  them,  with  the  usual  covenants  and  warranty; 
that  before  and  at  the  time  of  said  sale  and  conveyance,  there 
were  important  water  rights  connected  with  such  lands,  and 
used  for  the  purpose  of  their  irrigation,  and  without  which 
such  lands  were  of  little  value;  and  that  at  the  time  of  the 
appropriation  of  the  water  for  uses  specified  by  them  and  the 
defendant  all  the  lands  over  and  across  which  it  was  conveyed 
were  unoccupied  public  lands  of  the  government. 

Upon  this  state  of  facts,  it  is  clear,  then,  that  when  Row- 
land and  Cox  conveyed  by  their  deeds  the  lands  respectively 
settled  upon  by  them  with  their  appurtenances,  they  also 
conveyed  their  interests  respectively  in  the  ditch  and  water 
right  which  was  connected  therewith,  and  necessary  to  the 
cultivation  and  enjoyment  of  such  lands,  as  much  so  and  as 
certainly  as  if  they  had  so  declared  by  express  terms  in  their 
deeds.  In  such  case,  within  the  principle  already  announced 
a  grantor  conveys  by  his  deed,  as  an  appurtenance,  whatever 
he  has  the  power  to  grant  which  practically  annexed  to  the 
land  at  the  time  of  the  grant,  and  is  necessary  to  its  enjoy- 
ment in  the  condition  of  the  estate  at  that  time.  But  the 
theory  upon  which  the  plaintiff  has  brought  his  suit  for  an 
injunction,  and  what  he  is  seeking  to  establish  by  his  evi- 
dence, is  that  Sheep  creek  ditch  is  an  ancient  watercourse 
flowing  through  his  land  in  two  well-defined  channels;  that 
it  has  so  continued  to  flow  from  time  immemorial,  without 
interruption  or  abatement,  until  the  spring  of  1888,  when 
the  defendant  diverted  and  appropriated  all  of  its  waters, 
and  that  as  a  riparian  owner  he  has  a  right  to  have  its  waters 
continue  to  flow  in  its  channels  through  his  land  without  inter- 
ruption or  diminution.  His  own  and  other  testimony  of 
those  similarly  situated  shows,  in  substance,  that  he  purchased 
the  land  he  now  occupies,  and  through  which  Sheep  creek 
ditch  now  runs,  from  the  state  of  Oregon  in  1880,  and  at  that 
time  its  waters  were  flowing  through  his  land  in  well-defined 
channels,  and  so  continued  to  flow  about  the  same  amount 
from  year  to  year,  varying  some  with  the  season,  but  at  no 
time  less  than  one  thousand  inches,  until  the  spring  or  sum- 
mer of  1888,  when  its  diversion  and  appropriation  by  ,the> 
defendant,  together  with  an  exceptionally  dry  season,  affect- 


SIMMONS  v.  WINTERS.  227 

ing  its  supply,  caused  its  channels  to  become  partially  or 
almost  wholly  dry,  so  much  so,  at  least,  as  to  deprive  him  of 
water  for  irrigating  his  land,  stock,  and  domestic  purposes, 
greatly  to  his  damage,  which  is  variously  estimated  but  by 
no  witness  at  less  than  $500  testifying  in  his  behalf.  His 
testimony  designed  to  prove  that  Sheep  creek  ditch  is  an 
ancient  watercourse,  and  that  the  waters  flowing  in  its  chan- 
nels are  its  natural  waters,  as  distinguished  from  waters  di- 
verted from  Little  Sheep  creek,  and  turned  into  Sheep  creek 
ditch,  is  derived  principally  from  the  opinion  of  witnesses 
based  on  the  appearance  Sheep  creek  ditch  presented  about 
the  time  of  his  purchase  of  the  land,  and  subsequent  thereto, 
with  some  little  exception,  not  of  much -value  for  want  of 
particularity  and  attention  at  the  time  to  the  subject  matter 
now  of  inquiry.  These  witnesses,  judging  from  the  appear- 
ance Sheep  creek  ditch  then  presented,  express  the  opinion 
that  it  is  a  natural  watercourse,  and  that  the  waters  flowing 
in  its  channels  are  its  natural  waters,  with  perhaps  some 
little  diminution.  At  the  same  time,  some  of  these  witnesses 
testify  that  the  willows  and  cottonwood  growing  along  its 
course  were  very  small  eight  years  ago,  and  that  the  soil  was 
materially  different  from  that  on  Prairie  creek,  not  far  dis- 
tant, and  which  is  conceded  to  be  a  watercourse ;  one  of  them 
saying  that  he  did  not  know  of  any  other  creek  in  the  whole 
Wallowa  valley  that  had  sod  like  Sheep  creek  ditch,  indi- 
cating by  the  recent  growth  of  the  willows,  and  the  nature  of 
the  soil  through  which  Sheep  creek  ditch  has  cut  its  channels, 
that  it  is  not  an  ancient  watercourse,  whose  waters  have  been 
accustomed  to  flow  therein  regularly  or  continuously  from 
time  immemorial.  The  plaintiff  had  some  of  his  witnesses 
admit  that  they  knew  and  understood  at  the  time  of  his  pur- 
chase and  settlement,  as  well  as  their  own,  that  the  grantors 
of  the  defendant,  and  others  above  him  on  Sheep  creek  ditch, 
claimed  to  have  diverted  the  waters  of  Little  Sheep  creek  by 
means  of  dams,  ditches,  gulches  and  ravines,  or  dry  draws 
into  what  is  now  known  as  "Sheep  creek  ditch,"  and  to  be 
entitled  to  the  use  of  its  waters  by  prior  appropriation.  To 
better  understand  the  case,  we  must  now  turn  to  the  evidence 
for  defendant,  which  shows  that  the  grantors  of  the  defendant, 
and  three  other  persons,  in  1877,  settled,  respectively,  upon 


228  WATER  RIGHTS  AND  IRRIGATION  LAW. 

certain  lands  belonging  to  the  government,  which  being  dry 
and  arid  and  unproductive  without  irrigation,  for  the  pur- 
'pose  of  securing  a  supply  of  water  for  stock  and  domestic 
purposes,  and  the  cultivation  of  their  lands,  went  up  to  a 
natural  watercourse  called  "Little  Sheep  creek,"  built  a  dam 
across  it,  and  by  digging  ditches,  and  using  gullies,  ravines, 
or  dry  draws,  as  called  by  various  witnesses,  they  diverted 
substantially  all  the  waters  of  that  stream,  roughly  estimated 
to  be  about  two  thousand  five  hundred  inches,  which  they 
divided  into  equal  parts  among  themselves,  and  caused  these 
waters  to  flow  therein,  using  as  much  as  they  each  needed, 
and  letting  the  surplus  flow  on,  and  thereby  created  the  stream 
known  as  Sheep  creek  ditch.  His  evidence  also  goes  to  show 
that  these  ravines,  depressions,  or  dry  draws,  as  called,  which 
they  used  to  convey  the  waters  to  their  lands,  were  dry  draws, 
and  in  which  no  natural  waters  were  accustomed  to  flow,  but 
that  they  were  caused  by  occasional  bodies  of  surface  water 
descending  from  the  hills  during  times  of  melting  snow  and 
ice ;  that  there  is  quite  a  number  of  such  draws  between  Sheep 
creek  ditch  and  Prairie  creek,  only  a  mile  or  two  apart,  and 
that  they  are  very  similar  to  such  as  were  used  for  Sheep 
creek  ditch;  and  that  owing  to  the  face  of  the  country  it  is 
not  possible  for  Little  Sheep  creek  to  have  flowed  through 
Sheep  creek  ditch.  It  also  tends  to  show  that  no  willows  or 
shrubbery  ever  grew  along  its  course  until  the  diversion  of 
the  waters  had  been  effected,  and  that  the  sod  and  soil  through 
which  it  flowed  was  not  such  as  belonged  to  or  was  found 
along  natural  watercourses,  but  that  the  effect  of  the  diversion 
was  to  make  Sheep  creek  a  living  stream,  cutting  out  by 
the  force  of  its  waters  through  sod  and  soil,  except  occasional 
spreads  here  and  there,  a  definite  channel,  and  discharging 
its  waters  into  Prairie  creek.  There  were  also  several  other 
dry  draws  or  ravines  between  Sheep  creek  ditch  and  Prairie 
creek,  which  were  only  a  short  distance  apart,  but  these,  like 
those  of  which  Sheep  creek  ditch  had  been  partly  constructed, 
were  without  water  or  shrubbery  or  other  characteristic  of 
a  natural  watercourse,  or  of  the  action  of  water,  other  than 
was  produced  by  the  mere  drainage  of  surface  water  from 
melting  snows;  showing  that  the  ravines  and  draws  with 
which  Sheep  creek  ditch  is  partly  made  were  dry  and  with- 


SIMMONS  v.  WINTERS.  229 

out  water,  as  was  testified  to  by  several  witnesses,  and  that 
it  only  assumed  that  character  when,  by  dam  and  ditches 
connecting  with  dry  draws  and  ravines,  the  waters  of  Little 
Sheep  creek  were  diverted  into  them.  The  testimony  estab- 
lishing these  facts  was  supported  by  several  witnesses  whose 
opportunities  were  such,  both  before  and  after  the  diversion 
had  been  effected,  and  the  way  and  means  by  wl.!  .-h  it  was 
accomplished,  as  to  give  great  value  to  their  testimony, 
especially  in  the  absence  of  any  contradiction — or  attempt 
at  impeachment.  It  was  after  the  waters  had  been  turned 
into  Sheep  creek  ditch  and  it  had  begun  to  assume  the  appear- 
ance of  a  natural  stream  in  running  through  the  ravines  and 
draws,  that  the  principal  witnesses  for  the  plaintiff  express 
the  opinion  that  it  was  a  natural  and  ancient  watercourse; 
but  much  of  their  testimony  in  regard  to  the  size  of  the  wil- 
lows and  the  character  of  the  sod  and  soil  through  which 
it  had  cut  a  well-defined  channel  to  Prairie  creek,  is  but  a 
corroboration  of  the  testimony  for  the  defendant,  and  hardly 
consistent  with  the  theory  of  an  ancient  watercourse.  It  was 
the  fact  that  these  parties,  including  the  grantors  of  defend- 
ant, who  had  constructed  Sheep  creek  ditch,  and  turned  the 
waters  of  Little  Sheep  creek  into  it,  did  not  have  any  imme- 
diate use  for  the  full  amount  of  water  diverted  for  the  culti- 
vation of  their  lands;  that,  after  using  such  amount  of  it  as 
they  needed,  they  permitted  the  surplus  to  flow,  and  to 
create  through  the  lands  lying  below  a  living  stream,  along 
which  other  persons,  in  course  of  time,  settled,  and  used  the 
water  for  irrigating  their  lands,  stock  and  domestic  purposes. 
Mr.  Rowland,  one  of  the  grantors  of  defendant,  after  stating 
by  whom,  how,  and  by  what  means  the  diversion  was  effected, 
says:  "The  owners  (5)  used  all  they  each  needed,  and  let 
the  surplus  flow  on  through  the  ditch,  to  be  taken  up  by  the 
settlers  below  as  they  needed  it.  This  was  our  custom." 
While  Mr.  Rowland  does  not  state  exactly  the  amount  of  water 
diverted,  although  one  of  the  original  parties,  yet,  it  is  esti- 
mated at  two  thousand  five  hundred  inches,  of  which  each 
party  was  to  have  five  hundred  inches,  and  according  to 
which  the  defendant  claims  he  was  entitled  to  one  thousand 
inches  by  his  conveyances.  As  the  amount  of  water  needed 
for  irrigation,,  in  the  first  years  of  the  settlement,  was  neces- 


230  WATER  RIGHTS  AND  IRRIGATION  LAW. 

sarily  small,  a  large  surplus,  estimated  variously  and  varying 
from  one  to  two  thousand  inches,  was  permitted  to  flow  and 
create  the  watercourse  upon  which  the  plaintiff  subsequently 
settled.  Recognizing  the  force  of  the  evidence  as  fatal  to 
the  contention  that  Sheep  creek  ditch  is  an  ancient  and  nat- 
ural watercourse,  and  to  secure  the  right  to  the  use  of  its 
waters  to  the  extent  already  appropriated  by  him,  the  plain- 
tiff, conceding  that  it  is  not  a  natural  and  ancient  water- 
course, claims  that  as  the  defendant  and  others  have  not 
appropriated  for  the  irrigation  of  their  lands  the  amount  of 
water  diverted,  but  permitted  the  surplus  for  several  years, 
over  the  amount  needed  for  their  domestic  and  agricultural 
purposes,  to  flow  on  and  become  a  watercourse,  they  have 
thereby  fixed  the  amount  of  water  necessary  for  their  lands 
(which  is  admitted  to  be  one  hundred  and  ten  inches  appro- 
priated by  the  grantors  of  the  defendant,  to  which  he  is  en- 
titled by  his  conveyances),  and  that  the  plaintiff  and  others 
living  below  are  entitled  to  appropriate  the  surplus,  accus- 
tomed to  flow  through  their  lands.  The  law,  as  already  stated, 
is  that  no  one  can  by  a  prior  appropriation  claim  or  hold 
any  more  water  than  is  necessary  for  the  purposes  of  his 
appropriation.  The  grantors  of  the  defendant,  however  much 
they  may  have  diverted,  could  not  have  lawfully  appropriated 
any  more  than  was  necessary  to  irrigate  their  lands,  water 
their  stock,  and  for  domestic  purposes.  That  much  they 
were  entitled  to  use,  when  needed  or  necessary  for  the  pur- 
poses specified,  and  to  that  extent  it  was  a  valid  appropria- 
tion of  the  waters  to  a  beneficial  use  upon  the  lands,  and 
that  much  as  an  appurtenance  the  defendant  acquired  by  his 
conveyance  from  them,  and  was  entitled  to  the  use.  Beyond 
the  amount  of  water  thereby  taken  his  rights  did  not  go. 
He  could  not  waste  it,  and  was  only  entitled  to  as  much 
water,  within  his  original  appropriation,  as  was  necessary  to 
irrigate  his  lands.  As  the  grantors  of  the  defendant  and 
their  associates,  according  to  the  evidence,  had  diverted  more 
water  into  Sheep  creek  ditch  than  they  needed,  and  there- 
fore more  than  they  had  intended  to  use  or  appropriate  for 
irrigation,  stock  and  domestic  purposes,  they  permitted  the 
surplus  to  flow  through  the  ditch  upon  the  lands  of  defendant 
and  others  and  to  be  taken  up  and  used  by  them.  How  much 


SIMMONS  v.  WINTERS.  231 

there  was  of  such  surplus  it  is  difficult  to  determine,  but  it 
amounted  to  one  thousand  inches,  and  at  times  much  more, 
owing  to  its  use  and  the  season.  The  court  below  found  that 
the  amount  of  water  used  and  appropriated  by  the  defendant 
and  his  grantors  did  not  exceed  three  hundred  inches,  varying 
from  fifty  inches  to  that  amount,  as  needed  for  the  purposes 
of  the  appropriation;  but  in  our  judgment  four  hundred 
inches  would  be  nearer  the  amount  intended  to  be  appropri- 
ated for  the  uses  specified ;  and  as  between  the  parties  to  this 
record,  but  no  others,  this  should  be  taken  as  the  amount  of 
water  that  the  defendant  is  entitled  to  use,  leaving  the  surplus 
to  flow  on,  according  to  the  custom  established  by  his  grantors, 
to  be  appropriated  by  the  settlers  below.  It  is  now  claimed 
that  the  facts  show  that  the  defendant  used  or  wasted  this 
surplus  upon  his  lands,  to  the  damage  and  detriment  of  the 
rights  of  the  plaintiff  acquired  in  its  flow  through  his  land. 
The  evidence  indicates,  without  dissent,  that  the  season  was 
exceptionally  dry,  and  that  the  snow  in  the  mountains  was 
scant,  seriously  affecting  the  source  of  Little  Sheep  creek's 
supply  of  water,  and  by  reason  thereof  less  water  flowed  down 
the  ditch;  that  those  above  the  defendant  used  the  waters 
freely,  as  much  as  was  necessary  for  the  irrigation  of  their 
lands,  within  the  purposes  of  their  original  appropriation ;  and 
that  these  causes  combined  to  use  the  water  in  the  ditch,  leav- 
ing little  or  no  surplus  to  flow  on,  causing  the  settlers  below 
to  complain,  and  a  litigation  to  be  threatened,  which  to  avoid 
they  used  less  water,  and  permitted  more  to  pass  through  the 
ditch,  except  the  defendant,  who  continued  to  use  the  amount 
he  claimed  that  was  necessary  for  the  irrigation  of  his  land, 
and  to  which  he  was  entitled  within  the  original  appropria- 
tion. While  there  is  some  evidence  indicating  that  the  de- 
fendant used  the  water  freely,  and  perhaps,  on  one  or  two 
occasions,  more  than  was  actually  necessary,  though  this  is 
contradicted,  which,  it  may  be  admitted,  was  an  excess  of  the 
amount  he  was  entitled  -to  use,  if  more  than  was  actually 
necessary  at  the  time,  although  within  the  original  appropria- 
tion, yet  it  was  plainly  not  these  acts  which  caused  the  ditch 
and  its  channel  to  become  dry  during  all  the  season,  pro- 
ducing the  grievances  complained  of.  It  was  due  to  the  more 
potential  causes  of  a  drought,  aided  by  the  other  causes. 


232  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Everyone  had  a  short  crop  those  years,  for  they  were  years 
of  drought,  is  the  tenor  of  the  evidence.  So  that,  if  the  com- 
plaint was  framed  on  this  phase  of  the  facts,  no  case  is  made 
upon  which  relief  could  be  granted  by  injunction,  much  less 
when  it  is  framed  on  the  grounds  of  riparian  proprietorship 
of  a  natural  watercourse  running  through  his  lands  from 
time  immemorial,  which  is  a  different  matter,  and  governed 
by  different  rules  of  law.  In  any  view,  therefore,  there  is  a 
failure  of  proofs  to  justify  the  exercise  of  the  jurisdiction 
invoked,  which  is  always  applied  cautiously,  and  only  when 
the  right  to  the  matter  in  question  is  clearly  established,  and 
an  injurious  interruption  of  such  right  ought  to  be  prevented. 
The  decree  must  be  affirmed,  and  it  is  so  ordered. 


Tenant  may  Enjoin  Diversion — Inconsiderable  Injury  No 

Defense. 

AUGUST   HEILBRON   et   al.,   Respondents,   v.   FOWLER 

SWITCH  CANAL  COMPANY,  Appellant. 

(75  Cal.  426,  7  Am.  St.  Rep.  183,  17*  Pac.  535.) 

TEMPLE,  J.— The  facts  constituting  the  plaintiff's  case 
in  this  action  are  pretty  much  the  same  as  in  the  case  of 
Heilbron  v.  Last  Chance  Water  Ditch  Company,  recently 
decided  by  us.  (Ante,  p.  117.) 

Plaintiffs  are  in  possession  of  the  rancho  Laguna  de  Tache, 
containing  about  fifty  thousand  acres  of  land,  under  a  lease 
for  ten  years,  with  the  privilege  of  purchasing  during  their 
term.  Kings  river  forms  a  boundary  of  this  farm  for  thirty 
miles,  and  dividing  at  a  point  within  this  distance,  one  chan- 
nel of  the  river  called  Cole  slough  flows  through  the  rancho  for 
a  distance  of  ten  miles. 

Plaintiffs  claim  under  a  Mexican  grant,  made  January  10, 
1846.  The  claimant  filed  his  petition  for  the  confirmation 
of  his  title  with  the  land  commissioners  to  ascertain  and  settle 
private  land  claims  in  California,  February  15,  1853,  and, 


HEILBRON  v.  FOWLER  SWITCH  CANAL  Co.  233 

the  title  being  confirmed,  a  patent  was  issued  for  the  same 
March  6,  1866. 

Kings  river  rises  in  the  Sierra  Nevada  Mountains,  and  car-*" 
ries  at  its  lowest  stages  only  about  one  thousand  cubic  feet 
of  water  per  second,  and  at  the  highest  stages,  during  the 
time  of  melting  snows  in  the  spring  and  summer,  a  much 
larger  volume,  sometimes  as  much  as  fifteen  thousand  cubic 
feet  per  second.  During  the  ordinary  stages  of  water,  Cole 
slough  carries  the  larger  portion  of  the  waters  of  Kings  river, 
and  during  the  period  of  low  water  all  that  reaches  the  point 
of  divergence. 

For  more  than  two  years  before  the  bringing  of  this  action 
the  plaintiffs  had  maintained  and  cultivated  about  three 
thousand  acres  of  alfalfa  upon  the  land,  and  to  irrigate  the 
alfalfa,  water  their  stock,  and  increase  the  productiveness  of 
their  land,  they  had  built  a  dam  in  Cole  slough,  and  con- 
structed canals  and  ditches  leading  out  of  Cole  slough,  con- 
ducting the  water  over  their  land,  increasing  its  productive- 
ness, and  furnishing  water  for  their  cattle,  amounting  to 
ten  thousand  head,  which  were  entirely  dependent  upon  the 
river  for  water  to  drink. 

The  defendant  is  a  corporation,  organized  to  appropriate 
and  divert  the  water  of  Kings  river,  and  avers  in  its  answer 
that  it  has  taken  all  the  steps  required  under  the  Civil  Code 
to  authorize  it  to  appropriate  fifteen  hundred  cubic  feet  per 
second,  flowing  continuously,  and  at  great  expense  has  con- 
structed a  canal  with  a  capacity  of  from  one  thousand  to 
fifteen  hundred  cubic  feet  per  second,  sufficient  for  irrigating 
two  hundred  and  forty  thousand  acres  of  land.  That  the 
stockholders  own  about  sixty  thousand  acres  of  land  along 
the  canal  and  its  branches. 

The  land  owned  by  the  stockholders  is  a  long  distance  from 
the  river,  none  of  them  being  riparian  owners,  and  no  portion 
of  the  water  would  ever  find  its  way  again  into  the  river. 

It  was  found  as  a  fact  that  the  defendant  threatens  to,  and 
unless  enjoined  will,  divert  three  hundred  cubic  feet  of  water 
per  second,  and  as  much  as  fifteen  hundred  cubic  feet  of 
water  per  second  when  there  is  the  last-named  quantity  flow- 
ing in  the  river  at  the  head  of  defendant's  canal,  and  the 
rancho  Laguna  de  Tache  will  be  deprived  of  a  material  and 


234  WATER  RIGHTS  AND  IRRIGATION  LAW. 

substantial  quantity  of  water;  that  plaintiffs  will  be  deprived 
of  the  use  of  water  with  which  to  irrigate  said  land,  their 
cattle  of  sufficient  quantity  to  drink,  and  that  great  damage 
and  injury  will  occur  annually,  and  of  such  extent  that  the 
same  cannot  be  justly  computed  or  estimated,  and  an  action 
for  damages  would  not  afford  an  adequate  remedy. 

The  defendant  does  not  deny  that  it  threatens  to  divert  from 
the  stream  one  thousand  cubic  feet  of  water  per  second,  but 
denies  that  it  proposes  to  take  all  the  water  of  Kings  river, 
or  a  sufficient  quantity  to  injure  the  lands  of  plaintiffs,  and 
alleges  that  defendant  claims  the  right  of  withdrawal  of 
water  only  in  proportion  to  the  supply  which  may  be  flowing 
in  the  river,  and  does  not  intend  to  divert  the  whole  amount 
provided  in  its  articles  of  incorporation,  nor  three  hundred 
cubic  feet,  as  alleged  in  the  complaint. 

The  answer  also  avers  that  defendant  was  incorporated 
for  the  purpose  of  acquiring  title  to  one  thousand  cubic  feet 
of  water  per  second,  which  amount  they  purchased  from  one 
Dusy,  and  that  since  they  have  taken  under  the  code  five 
hundred  additional  cubic  feet  per  second,  and  that  it  has 
commenced  the  construction  of  a  suitable  dam  and  headgate 
sufficient  to  divert  that  amount  of  water,  the  canal  being 
eighty  feet  wide  and  five  feet  deep,  and  had  so  far  completed 
the  work  as  to  be  able  to  divert  fifteen  hundred  cubic  feet  of 
water  per  second,  "so  appropriated  and  owned  by  defendant, 
into  its  canal,  and  to  conduct  the  same  along  and  through  its 
said  canal  a  distance  of  twenty-one  miles, ' '  and  that  they  have 
expended  in  its  construction  one  hundred  and  ten  thousand 
dollars. 

Plaintiffs  recovered  judgment,  and  the  defendant  appeals 
from  the  judgment,  and  from  an  order  denying  its  motion  for 
a  new  trial.  The  appeal  from  the  judgment,  not  having 
been  taken  within  one  year,  must  be  dismissed. 

On  the  trial  the  defendant  attempted  to  prove  its  right  as 
an  appropriator  by  showing  its  compliance  with  the  pro- 
visions of  the  code.  This  evidence  was  excluded,  on  the 
objection  of  plaintiffs,  and  defendant  excepted. 

The  court  also  excluded,  against  the  exception  of  the  de- 
fendant, evidence  tending  to  show  that  there  was  no  appre- 


HEILBRON  v.  FOWLER  SWITCH  CANAL  Co.  235 

ciable  difference  in  the  quantity  of  water  in  Kings  river  at 
the  time  when  defendant  was  taking  water  and  at  the  time 
when  it  was  not  taking  water  from  the  river.  In  like  manner, 
the  court  refused  to  permit  the  defendant  to  show  that  its 
officers  had  instructed  its  headgate-keeper  that,  whenever 
the  water  was  low  in  the  river,  and  there  could  be  any  cause 
of  complaint  by  anyone,  or  it  would  make  an  appreciable 
difference  in  the  quantitj"  of  water  in  the  river,  he  was  not 
to  take  water,  but  to  shut  down  his  gate,  and  only  take  water 
when  it  would  make  no  appreciable  difference  in  the  quantity 
flowing  in  the  river. 

The  first  point  made  by  appellant  is,  that  where  a  party"' 
suffers  no  appreciable  injury,  and  is  threatened  with  none, 
he  cannot  invoke  the  aid  of  a  court  of  equity  to  restrain  a 
trespass,  but  will  be  left  to  his  remedy  at  law. 

Perhaps  this  proposition  might  be  admitted  without  affect- 
ing the  merits  of  this  appeal. 

It  does  not  follow,  because  the  injury  is  incapable  of  ascer- 
tainment, or  of  being  computed  in  damages,  and  therefore 
only  nominal  damages  can  be  recovered,  that  it  is  trifling  or 
inconsiderable.  It  is  doubtful  if  it  can  properly  be  said 
that  there  is  any  evidence  in  the  case  which  tends  to  show, 
or  if  that  which  was  offered  would  have  tended  to  show,  that 
the  injury  to  plaintiffs  was  inconsiderable;  that  it  was  unas- 
certainable,  and  in  that  sense  inappreciable,  may  be  a  good 
reason  why  an  injunction  should  issue.  .  .  . 

No  doubt  there  are  cases  in  which  a  court  will  refuse  to 
interfere  by  injunction  to  prevent  a  trespass,  where  it  can 
see  that  the  injury  will  be  slight,  and  the  injunction  may 
work  great  injury.  Here  the  defendant  professes  to  take 
from  plaintiffs  their  property,  really  upon  the  plea  that  it  is 
worth  but  little  to  the  plaintiffs  and  much  to  the  defendant. 
It  is  not  an  ordinary  trespass.  It  is  a  perpetual  taking  of 
the  property  of  the  plaintiffs,  a  continuous  nuisance,  which 
may  ripen  into  a  right  unless  prevented. 

The  injury  is  one,  also,  which  in  its  nature  cannot  be 
estimated.  In  the  recent  case  of  Heilbron  v.  Last  Chance 
Company  it  was  said:  "The  flow  of  the  water  of  a  stream, 
whether  it  overflow  the  banks  or  not,  naturally  irrigates  and 


236  WATER  EIGHTS  AND  IRRIGATION  LAW. 

moistens  the  ground  to  a  great  and  unknown  extent,  and 
thus  stimulates  vegetation,  and  the  growth  and  decay  of 
vegetation  add,  not  only  to  the  fertility,  but  to  the  substance 
and  quantity  of  the  soil. ' ' 

If  this  be  so, — and  it  cannot  be  doubted, — it  is  obvious  that 
in  a  climate  like  that  where  this  land  is  situated,  the  benefit 
derived  from  a  flow  of  water  for  thirty  miles  along  its  bound- 
ary, and  ten  miles  through  it,  cannot  be  inconsiderable,  but 
yet  the  extent  of  benefit  must  ever  be  an  unknown  quantity. 

The  defendant  here  states  that  the  channel  of  the  river  V 
above  and  along  this  land  is  deep,  and  therefore  at  times  of 
ordinary  flow  the  seepage  cannot  be  great.  If  so,  it  must  be 
important  to  plaintiffs  that  the  channel  should  carry  a  full 
stream,  and  evidently  at  such  times  the  percolation  would  be 
increased. 

2.  The  right  claimed  by  the  defendant  is  not  to  appropri- l 
ate  the  surplus  waters  of  extraordinary  floods,  when  the  flow 
is  more  destructive  than  useful.  It  claims  as  an  appropriator 
a  certain  quantity  of  water,  adversely  to  the  riparian  pro- 
prietor; and  if  the  claim  be  valid,  it  may  be  asserted  at  any 
stage  of  the  water.  But  the  rights  of  the  riparian  proprietor 
do  not  depend  upon  the  quantity  of  water  flowing  in  the 
stream.  Nor  can  that  flow  be  said  to  be  an  extraordinary 
flood  which  can  be  counted  upon  as  certain  to  occur  annually, 
and  to  continue  for  months.  The  defendant  has  no  reservoir 
to  retain  the  surplus  waters  of  casual  and  unusual  freshets, 
and  its  works  would  be  of  little  value  if  its  dependence  were 
only  upon  such  waters. 

And  certainly  it  would  be  a  poor  protection  to  the  plaintiffs 
to  have  to  depend  upon  the  keeper  of  the  headgate  of  defend- 
ant to  take  only  a  proportionate  amount  of  water,  or  to  take 
water  only  when  it  could  be  done  without  injury  to  plaintiffs. 
There  was  no  error  in  excluding  the  offered  testimony. 

We  see  nothing  in  the  suggestion  that  defendant  is  pre- 
sumably the  licensee  of  the  United  States,  and  that  the  United 
States,  being  an  upper  riparian  proprietor,  could  take  a  rea- 
sonable quantity  of  water  as  against  the  lower  riparian  owner.  V 

A  riparian  owner  may  not  authorize,  as  against  a  lower 
proprietor,  a  company  to  take  water  from  the  stream,  to  be 
conducted  at  a  distance  and  sold. 


HANSON  v.  McCuE.  237 

We  see  no  occasion  to  discuss  the  question  as  to  whether 
the  river  is  navigable  or  not.     In  either  event  the  result  would 
be  the  same.     The  riparian  owner  on  a  nontidal,  navigable  »x 
stream  has  all  the  rights  of  a  riparian  owner  not  inconsistent 
with  the  public  easement.  .  .  . 

Besides,  Cole  slough  is  not  claimed  to  be  a  navigable  stream. 
The  right  of  the  state  to  interfere  with  the  flow  there  would 
certainly  be  limited  to  the  interest  of  navigation. 

The  estate  of  the  plaintiffs  is  sufficient  to  enable  them  to 
maintain  this  action.  They  were  lessees  for  a  term  of  ten 
years,  with  the  privilege  of  purchasing  during  that  time.  If 
they  fail  to  perfect  the  purchase,  the  fact  that  the  injunction 
is  in  form  perpetual  cannot  injure  the  defendant.  If  the 
estate  which  the  injunction  was  designed  to  protect  cease  to 
exist,  there  would  be  no  one  to  enforce  the  judgment,  for 
there  would  be  no  one  in  privity  with  the  plaintiffs.  Practi- 
cally, it  would  cease  to  exist.  .  .  . 

The  appeal  from  the  judgment  is  dismissed,  and  the  order 
denying  the  motion  for  a  new  trial  is  affirmed. 


Underground  Currents — Presumption  of  Grant  of  Easement 
— Percolation  Presumed. 

THOMAS  H.  HANSON  v.  JAMES  S.  McCUE. 

(42  Cal.  303,  10  Am.  St.  Eep.  299.) 

By  the  Court,  WALLACE,  J. 

This  is  an  action  brought  by  Hanson  to  restrain  the  de- 
fendant McCue  from  prosecuting  the  work  of  digging  a 
tunnel  on  the  lands  of  the  latter,  having  for  its  object  the 
obtaining  of  water  for  the  purpose  of  selling  the  same  in 
the  neighboring  town  of  San  Rafael  as  an  article  of  com- 
merce. A  perpetual  injunction  was  decreed,  and  a  motion 
for  a  new  trial  being  denied,  the  case  comes  here  upon 
appeal. 

The  defendant  McCue  is  the  owner  in  fee  and  in  posses- 
sion of  certain  premises  situated  in  or  near  the  town  of  San 


238  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Rafael,  in  Marin  county,  upon  which  there  is  a  spring  of 
living  water  having  no  natural  channel  or  outlet.  He  de- 
raigiis  his  title  through  one  Timothy  Murphy,  who  owned 
the  premises  as  early  as  the  year  1844,  when  he  constructed 
an  artificial  channel,  by  means  of  which  he  conducted  the 
waters  of  the  spring  along  the  surface  of  the  earth  through 
a  wooden  trough,  across  a  dry  gulch,  for  a  distance  alto- 
gether of  several  hundred  yards,  in  a  southwesterly  direc- 
tion, to  another  lot  where  he  had  a  growing  vineyard,  which 
he  by  this  means  irrigated.  This  artificial  channel,  before 
it  reached  the  vineyard,  passed  over  a  considerable  tract 
of  land  then  unclaimed  and  unoccupied,  intervening  the 
spring  and  the  vineyard,  a  portion  of  which  was  afterward, 
in  1854,  taken  possession  of  by  one  Smith,  and  subsequently, 
in  1856,  sold  by  him  to  Hanson,  the  plaintiff,  constituting 
the  premises,  or  a  part  of  the  premises,  now  owned  by  the 
latter.  The  artificial  channel  has  ever  since  been  main- 
tained, and  it  brings  to  the  premises  of  the  plaintiff  Hanson 
a  stream  of  living  fresh  water,  which  is  used  by  him  for 
culinary  and  general  domestic  purposes,  and  for  irrigating 
the  garden,  ornamental  grounds,  fruit  trees,  flowers,  etc., 
growing  thereon;  and  he  has  no  water  on  his  premises  ex- 
cept that  found  in  this  channel,  or  in  a  well  which  is  fed  by 
the  percolations  from  the  channel.  The  complaint  alleges 
that  the  defendant  McCue  is  digging  a  ditch  or  tunnel  on 
his  premises  where  the  spring  is  found,  in  such  a  way  that, 
if  the  digging  be  continued,  it  will  inevitably  cut  off  and 
intercept  "the  hidden  and  subterranean  veins,  streams,  and 
sources  of  said  spring,  and  which  supply  the  same  with 
water,  and  will  thereby  divert  and  lead  away  the  waters 
which  would  otherwise  flow  into  said  spring,  and  will  so 
lessen,  diminish,  or  entirely  cut  off  and  stop  the  usual  and 
ordinary  supply  and  amount  of  water  in  said  spring,  that 
no  water  would  flow  therefrom  to  or  upon  said  premises 
of  the  plaintiff,  to  his  great  and  irreparable  injury,"  etc. 

It  is  to  be  observed  that  the  court  below  found  that,  in 
making  the  excavation  complained  of,  the  defendant  McCue 
was  actuated  not  by  any  malice,  but  that  his  purpose  was 
bona  fide,  the  obtaining  of  water  for  commercial  purposes. 
Further,  it  nowhere  appears,  either  in  the  allegations  of  the 


HANSON  v.  McCuE.  239 

complaint,  the  findings  of  the  court,  or  otherwise,  by  the 
record,  that  the  spring  in  question  is  itself  supplied,  in 
whole  or  in  part,  by  the  flow  of  any  defined  stream  of  water, 
either  subterranean  or  passing  along  the  surface  of  the  earth. 
Underground  currents  of  water,  flowing  in  defined  channels, 
are  known  to  exist  in  considerable  volume,  particularly  in 
limestone  regions;  and  where  their  existence  is  shown,  there 
is  no  doubt,  either  upon  reason  or  authority,  that  the  rules 
of  law  which  govern  the  use  of  similar  streams  flowing 
upon  the  surface  of  the  earth  are  applicable  to  them.  Such 
a  stream,  whether  emerging  or  sinking,  is  in  a  greater  or  less 
degree  a  fertilizer  of  the  land  through  which  it  flows.  The 
right  that  it  should  flow  "«6t  solebat"  comes  ex  jure 
naturae,  and  no  one,  merely  because  he  is  the  proprietor  of 
the  soil  through  which  it  passes,  can  claim  the  corpus  of  the 
water  of  the  flowing  stream,  or  intercept  its  natural  descent 
to  the  lands  of  the  proprietor  below.  It  not  appearing  that 
the  spring  here  is  supplied  by  any  defined  flowing  stream, 
it  must  be  presumed  that  it  is  formed  by  the  ordinary  per- 
colations of  water  in  the  soil.  The  court,  it  is  true,  as  we 
have  already  seen,  mentions  in  its  findings  "the  hidden  and 
subterranean  veins,  streams,  and  sources  of  said  spring"  as 
being  about  to  be  cut  off  by  the  excavation ;  and  the  counsel 
for  the  plaintiff  argues  that  this  amounts  to  a  finding  that 
there  is  a  subterranean  stream  of  a  denned  character,  and 
flowing  in  a  defined  channel,  which  is  about  to  be  diverted. 
But  it  is  evident  that  the  finding  means,  in  substance,  that 
the  spring  is  supplied  in  some  way  by  hidden  veins  or  sub- 
terranean streams;  but  the  court  does  not  find  that  there  is 
any  stream  known  to  exist  at  all,  or  if  there  is,  whether  it 
flows  in  a  defined  channel,  which  is  the  important  point  to 
be  found.  It  amounts  only  to  a  finding  that  the  "sources" 
of  the  spring — be  they  what  they  may — are  about  to  be  cut 
off.  I  do  not  understand  the  finding  as  establishing  the  ex- 
ceptional fact  that  the  spring  here  is  fed  by  a  known  run- 
ning stream  of  water  flowing  in  a  defined  channel.  The 
question  then  comes  to  this:  One  who  is  owner  of  the  free- 
hold— usque  ad  infernos — digging  in  the  soil  for  the  lawful 
purpose  of  his  own  profit,  and  not  actuated  by  the  malicious 
intent  to  wantonly  deprive  the  plaintiff  of  the  flow  of  water, 


240  WATER  EIGHTS  AND  IRRIGATION  LAW. 

is,  at  the  instance  of  the  latter,  enjoined  from  so  digging, 
because  he  will  thereby  divert  the  waters  which  percolate  the 
soil  from  the  spring  from  which  the  artificial  watercourse 
leads  to  the  lands  of  the  plaintiff.  Water  filtrating  or  per- 
colating in  the  soil  belongs  to  the  owner  of  the  freehold — 
like  rocks  and  minerals  found  there.  It  exists  there  free 
from  the  usufructuary  right  of  others,  which  is  to  be  re- 
spected by  the  owner  of  an  estate  through  which  a  defined 
stream  of  water  is  found  to  flow.  The  owner  may  appro- 
priate the  percolation  and  filtrations  as  he  may  choose,  and 
turn  them  to  profit  if  he  can.  To  hold  otherwise  would  be 
to  hold  that  the  plaintiff  here  could  lawfully  claim  a  right 
to  convert  the  lot  of  McCue  into  a  mere  filterer  for  his  own 
convenience.  "Such  a  claim,"  said  the  supreme  court  of 
Pennsylvania,  in  Pennsylvania  R.  R.  Co.  v.  McCioskey,  23 
Pa.  528,  "if  sustained,  would  amount  to  a  total  abrogation 
of  the  right  of  property.  No  man  could  dig  a  cellar  or  a 
well,  or  build  a  house  on  his  own  land,  because  these  opera- 
tions necessarily  interrupt  the  filtrations  through  the  earth. 
Nor  could  he  cut  down  the  forest,  Or  clear  his  land  for  the 
purpose  of  husbandry,  because  the  evaporation  which  would 
be  caused  by  exposing  the  soil  to  the  sun  and  air  would 
inevitably  diminish,  to  some  extent,  the  supply  of  water 
which  would  otherwise  filter  through  it.  He  could  not  even 
turn  a  furrow  for  agricultural  purposes,  because  this  would 
partially  produce  the  same  result." 

I  am  of  the  opinion  that  the  plaintiff  has  no  such  interest 
in  the  percolating  waters  found  in  the  defendant's  land  as 
will  support  this  action. 

It  is  next  argued-,  however,  that  the  fact  that  the  plaintiff 
and  those  whose  'estate  he  has  have  enjoyed  the  stream  flow- 
ing from  the  spring  for  upward  of  fifteen  years  without 
interruption,  and  adversely  to  the  defendant  and  his  grantor, 
will  support  a  presumption  of  a  grant  of  an  easement  by  the 
latter  to  the  former. 

The  presumption  of  the  grant  of  an  easement,  when  in- 
dulged, is  because  the  conduct  of  the  other  party,  in  sub- 
mitting to  the  use  for  such  a  length  of  time  without  objec- 
tion, cannot  be  accounted  for  on  any  other  hypothesis.  The 
acts  done  by  the  party  claiming  the  benefit  of  the  presump- 


FORBELL  v.  CITY  OF  NEW  YORK.  241 

tion,  and  his  predecessors  in  estate,  must,  however,  have 
been  in  themselves  such  as  the  other  party  having  the  right 
to  object  to,  or  complain  of,  did  neither,  but  submitted  to 
them  without  objection  or  challenge.  Such  acts,  if  con- 
tinued during  a  sufficient  period  of  time  under  such  circum- 
stances, would  raise  the  presumption  relied  upon.  But  it 
will  be  seen  at  once  that  McCue,  or  those  from  whom  he  pur- 
chased, could,  in  the  nature  of  things,  have  no  right  to 
complain  that  the  water  in  the  artificial  channel,  after  leav- 
ing the  spring,  was  appropriated  below  by  the  owners  of  the 
Hanson  lot.  If  they  had  no  right  to  complain  in  the  first 
instance  we  are  not  driven  to  the  presumption  of  the  grant 
of  an  easement  to  account  for  why  they  did  not  complain. 

Judgment  and  order  reversed,   and  cause  remanded  for 
new  trial. 


Underground  Waters. 

BENJAMIN   F.    FORBELL,    Respondent,   v.   THE    CITY 
OF  NEW  YORK,  Appellant. 

(164' N.  Y.  522,  79  Am.  St.  Eep.  666,  58  N.  E.  644,  51  L.  E.  A.  695.) 

Appeal  from  a  judgment  of  the  appellate  division  of  the 
supreme  court  in  the  second  judicial  departmeat,  entered 
upon  an  order  made  January  9,  1900,  affirming  a  judgment 
in  favor  of  plaintiff  entered  upon  a  decision  of  the  court  on 
trial  at  special  term. 

The  judgment  grants  a  perpetual  injunction  restraining 
the  city  of  New  York  from  operating  engines,  driven  wells 
and  pumping  stations  known  as  the  Spring  Creek  Pumping 
Station  in  the  borough  of  Queens,  city  of  New  York,  on  the 
conduit  line  near  the  Kings  county  boundary  line,  and 
awards  past  damages  to  the  plaintiff  in  the  sum  of  $6,000, 
together  with  the  costs  of  the  action. 

The  plaintiff  was  a  lessee  of  certain  farming  lands  situ- 
ated near   Spring   creek   within  the   county   of   Kings.     He 
used  a  portion  of  the  lands  in  question  for  the  purpose  of 
growing  celery  and  watercresses. 
10 


242  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  city  of  Brooklyn  constructed  a  pumping  station  in  the 
place  in  question  early  in  1885,  and  in  1894  sunk  additional 
wells  and  made  an  additional  pumping  station.  The  effect 
of  pumping  at  these  stations  was  to  lower  the  underground 
water  table  on  this  land,  and  thus  made  it  unfit  for  cultiva- 
tion of  celery  or  watercresses,  and  the  crops  failed  for  many 
years  prior  to  the  commencement  of  this  action  in  1898. 

LANDON,  J. — The  defendant  makes  merchandise  of  the 
large  quantities  of  water  which  it  draws  from  the  wells 
that  it  has  sunk  upon  its  two  acres  of  land.  The  plaintiff 
does  not  complain  that  any  surface  stream  or  pond  or  body 
of  water  upon  his  own  land  is  thereby  affected,  but  does 
complain,  and  the  courts  below  have  found,  that  the  defend- 
ant exhausts  his  land  of  its  accustomed  and  natural  supply 
of  underground  or  subsurface  water,  and  thus  prevents  him 
from  growing  upon  it  the  crops  to  which  the  land  was  and 
is  peculiarly  adapted,  or  destroys  such  crops  after  they  are 
grown  or  partly  grown. 

The  defendant  does  not  take  from  his  own  land  simply 
its  natural  or  accustomed  supply  or  holding,  but  by  means 
of  its  appliances  and  operations  it  takes  and  appropriates 
a  large  part  of  the  natural  and  accustomed  supply  or  hold- 
ing of  the  plaintiff's  land.  The  case  is  not  one  in  which, 
because  the  percolation  and  course  of  the  subsurface  waters 
are  unobservable  from  the  surface,  they  are  unknown  and 
thus  so  far  speculative  and  conjectural  as  to  be  incapable 
of  proof  or  judicial  ascertainment. 

Before  the  defendant  constructed  its  wells  and  pumping 
stations  it  ascertained,  at  least  to  a  business  certainty,  that 
such  was  the  percolation  and  underground  flow  or  situation 
of  the  water  in  its  own  and  the  plaintiff's  land  that  it  could 
by  these  wells  and  appliances  cause  or  compel  the  water  in 
the  plaintiff's  land  to  flow  into  its  own  wells,  and  thus  could 
deprive  the  plaintiff  of  his  natural  supply  of  underground 
water.  This  it  has  accomplished  just  as  it  expected  to  do 
it;  the  evidence  to  that  effect  is  about  as  satisfactory  and 
convincing  as  if  the  case  were  one  of  surface  waters. 

That  the  defendant  has  so  used  its  own  as  to  injure  the 
plaintiff  there  is  no  question.  The  question  is  whether  the 


FORBELL  v.  CITY  OP  NEW  YORK.  243 

plaintiff  has  or  ought  to  have  in  the  just  administration  of 
the  law  a  remedy. 

In  Smith  v.  City  of  Brooklyn,  160  N.  Y.  357,  54  N.  E. 
787,  45  L.  R.  A.  664,  a  case  in  which  the  defendant,  by 
means  of  the  same  acts  and  appliances  as  it  employed  in  this 
case,  lowered  the  water  in  the  plaintiff's  surface  stream  and 
pond,  this  court,  in  holding  the  defendant  liable  for  the  dam- 
age thus  caused,  carefully  refrained  from  considering  the 
question  whether  the  defendant  would  have  been  liable  if  it 
had  simply  lowered  the  subsurface  level  or  body  of  under- 
ground water  not  contributing  to  the  supply  of  plaintiff's 
surface  stream  or  pond. 

It  may  be  conceded  that  the  letter  of  the  law,  as  expounded 
in  many  cases  in  this  state,  denies  liability. 

The  earlier  cases  followed  the  law  as  stated  in  Acton  v. 
Blundell,  12  Mees.  &  W.  324,  and  Greenleaf  v.  Francis,  18 
Pic.  R.  (Mass.)  117.  So  far  as  the  extraction  or  diversion 
of  underground  water  upon  the  land  of  one  proprietor  affects 
no  surface  stream  or  pond  upon  the  neighboring  land,  but 
simply  the  underground  water  therein,  the  rule  is  still  adhered 
to. 

The  reasons  usually  assigned  for  the  rule  are  that  the  owner 
of  the  soil  may  lawfully  occupy  the  space  above  as  well  as  be- 
low the  surface  to  any  extent  that  he  pleases ;  that  the  water 
stored  or  held  in  his  soil,  so  long  as  it  remains  there,  is — unlike 
water  flowing  in  a  surface  stream — a  part  of  the  soil  itself. 
(Barkley  v.  Wilcox,  86  N.  Y.  140,  40  Am.  Rep.  519.)  That 
a  different  rule  would  prevent  the  reasonable  use  and  improve- 
ment of  land;  that  without  a  grant  or  positive  statute  there 
can  be  no  easement  in  one  parcel  of  land  for  the  subsurface 
support  or  supply  of  subsurface  water  in  another  parcel ;  that 
the  percolation  and  underground  flow  of  water  are  out  of 
sight  and  their  exact  operation  and  courses  are  conjectural 
and  not  susceptible  of  actual  observation  and  proof;  and 
finally,  that  the  damages,  if  any,  are  the  remote  or  indirect 
consequence  of  lawful  acts. 

It  may  be  conceded  that  these  reasons,  or  some  of  them, 
were  ample  to  afford  the  proper  rule  of  decision  in  the  cases 
to  which  they  were  applied.  We  do  not  intend  to  impair 


244  WATER  EIGHTS  AND  IRRIGATION  LAW. 

their  applicability  to  like  cases.  But  there  are  features  of 
this  case  to  which  these  reasons  do  not  apply.  As  already 
intimated,  the  defendant  installed  its  pumping  plant  know- 
ing that  the  underground  operation  and  habit  of  this  store  of 
water  in  its  own  and  neighboring  lands,  including  the  plain- 
tiff's, a  total  area  of  from  five  to  eleven  square  miles,  would 
enable  it  to  capture  the  greater  part  of  it. 

In  the  cases  in  which  the  lawfulness  of  interference  with 
percolating  waters  has  been  upheld,  either  the  reasonableness 
of  acts  resulting  in  the  interference  or  the  unreasonableness 
of  imposing  an  unnecessary  restriction  upon  the  owner's 
dominion  of  his  own  land,  has  been  recognized. 

In  the  absence  of  contract  or  enactment,  whatever  it  is 
reasonable  for  the  owner  to  do  with  his  subsurface  water, 
regard  being  had  to  the  definite  rights  of  others,  he  may  do. 
He  may  make  the  most  of  it  that  he  reasonably  can.  It  is 
not  unreasonable,  so  far  as  it  is  now  apparent  to  us,  that  he 
should  dig  wells  and  take  therefrom  all  the  water  that  he 
needs  in  order  to  the  fullest  enjoyment  and  usefulness  of  his 
land  as  land,  either  for  purposes  of  pleasure,  abode,  produc- 
tiveness of  soil,  trade,  manufacture,  or  for  whatever  else 
land  as  land  may  serve.  He  may  consume  it,  but  must  not 
discharge  it  to  the  injury  of  others.  But  to  fit  it  up  with 
wells  and  pumps  of  such  pervasive  and  potential  reach  that 
from  their  base  the  defendant  can  tap  the  water  stored  in  the 
plaintiff's  land,  and  in  all  the  region  thereabout,  and  lead  it 
to  his  own  land,  and  by  merchandising  it  prevent  its  return, 
is,  however  reasonable  it  may  appear  to  the  defendant  and  its 
customers,  unreasonable  as  to  the  plaintiff  and  the  others 
whose  lands  are  thus  clandestinely  sapped,  and  their  value 
impaired. 

The  learned  trial  judge  found  that  the  acts  of  the  defend- 
ant were  trespass.  No  doubt  trespass  may  be  committed  by 
the  projection  of  force  beyond  the  boundary  of  the  lot  where 
the  projecting  instrument  is  operated.  Injuries  .caused  by 
explosions  are  familiar  instances.  We  think  the  finding  justi- 
fied by  the  particular  facts  of  this  case.  Force  is  not  neces- 
sarily direct  violence.  It  may  be  produced  by  the  employ- 
ment of  such  material  agencies  or  instruments  as  become 


KATZ  v.  WALKINSHAW.  215 

effective  by  the  co-operation  of  the  forces  of  nature,  and  such 
is  the  case  before  us. 

The  distinction  between  a  case  like  this  and  the  cases  of 
percolating  waters  in  which  liability  has  been  denied  was  well 
pointed  out  by  the  learned  judge  who  wrote  for  the  appellate 
division  in  Smith  v.  City  of  Brooklyn,  18  App.  Div.  340,  46 
N.  Y.  Supp.  141.  We  refer  to  the  opinion  as  a  valuable 
contribution  to  the  discussion  of  the  subject. 

We  more  readily  conclude  to  affirm,  because  the  immunity 
from  liability  which  the  defendant  claims  violates  our  sense 
of  justice.  It  seems  to  pervert  just  rules  to  unjust  purposes ; 
it  does  wrong  under  the  letter  of  the  law  in  defiance  of  its 
spirit.  The  case  is  certainly  unlike  those  which  have  preceded 
it  in  this  court,  and  we  may  consider  the  rules  announced  in 
the  previous  cases  in  the  light  of  the  cases  themselves.  We 
recognize  the  fact  that  the  water  supply  of  a  great  city  is  of 
vastly  more  importance  than  the  celery  and  watercresses  of 
which  the  plaintiff's  land  was  so  productive,  before  the  de- 
fendant encroached  upon  his  water  supply.  But  the  defend- 
ant can  employ  the  right  of  eminent  domain,  and  thus  provide 
its  people  with  water  without  injustice  to  the  plaintiff. 

The  judgment  should  be  affirmed,  with  costs. 


Percolating   Waters — Artesian   Belt — A   Reasonable   Use — 
Diversion  to  Distant  Lands. 

LEAH  J.  KATZ,  Executrix,  etc.,  et  al.,  Appellants,  v.  MAR- 
GARET D.  WALKINSHAW,  Respondent. 

(141  Cal.  116,  99  Am.  St.  Eep.  35,  70  Pac.  663,  74  Pac.  766,  64  L.  R.  A. 

236.) 

SHAW,  J. — A  rehearing  was  granted  in  this  case  for  the 
purpose  of  considering  more  fully,  and  by  the  aid  of  such 
additional  arguments  as  might  be  presented  by  persons  not 
parties  to  the  action,  but  vitally  interested  in  the  principle 
involved,  a  question  that  is  novel  and  of  the  utmost  importance 
to  the  application  to  useful  purposes  of  the  waters  which  may 
be  found  in  the  soil. 


246  WATER  EIGHTS  AND  IRRIGATION  LAW. 

Petitions  for  rehearing  were  presented  not  only  in  behalf 
of  *the  defendant,  but  also  on  behalf  of  a  number  of  corpora- 
tions engaged  in  the  business  of  obtaining  water  from  wells 
and  distributing  the  same  for  public  and  private  use  within 
this  state,  and  particularly  in  the  southern  part  thereof.  Able 
and  exhaustive  briefs  have  been  filed  on  the  rehearing.  The 
principle  decided  by  the  late  Justice  Temple  in  the  former 
opinion,  and  the  course  of  reasoning  by  whieh  he  arrived  at 
the  conclusion,  have  been  attacked  in  these  several  briefs  and 
petitions  with  much  learning  and  acumen.  It  is  proper  that 
we  should  here  notice  some  of  the  objections  thus  presented. 

It  is  urged,  in  the  first  place,  that  the  decision  goes  beyond 
the  case  that  was  before  the  court;  that  the  pleadings  stated 
a  cause  of  action  solely  for  the  diversion  of  water  from  an 
alleged  underground  stream,  and  that,  therefore,  there  was  no 
occasion  for  a  discussion  of  the  principles  governing  the  rights 
to  waters  of  the  class  usually  denominated  percolating  waters. 
The  proposition  is  not  tenable.  The  complaint,  in  substance,v 
states  that  the  plaintiffs  had  wells  upon  their  respective  tracts/ 
of  land,  from  which  water  flowed  to  the  surface  of  the  ground.^ 
that  the  water  was  necessary  for  domestic  use  and  irrigation 
on  the  lands  on  which  they  were  situate ;  that  the  defendant, 
by  means  of  other  wells  and  excavations  upon  another  tract  of 
land  in  the  vicinity,  prevented  any  water  from  flowing  through 
the  plaintiffs'  wells  to  their  premises,  and  that  this  was  done 
by  drawing  off  the  water  through  the  wells  of  the  defendant, 
taking  it  to  a  distant  tract  and  there  using  it.  If  the  prin- 
ciple  is  correct  that  the  defendant  cannot  thus,  and  for  this 
purpose,  take  from  the  plaintiffs'  wells  the  percolating  waters 
from  which  they  are  supplied,  then  no  further  allegations 
were  necessary,  and  the  averment  that  the  water  constituted 
part  of  an  underground  stream  may  be  regarded  as  surplusage.*^ 
The  complaint  was  thus  treated  in  the  opinion  of  Justice 
Temple,  and  he  properly  considered  the  question  whether  or 
not,  eliminating  the  surplus  allegation  that  there  was  an 
underground  stream,  the  complaint  stated  a  cause  of  action 
which  was  sustained  by  the  evidence.  The  fact  that  the  court 
below  supposed  that  the  existence  of  a  stream  of  water  was 
necessary  to  make  the  diversion  of  the  water  an  actionable 


KATZ  v.  WALKINSHAW.  247 

wrong  does  not  limit  this  court  to  the  same  view,  if  it  be 
erroneous.  If  enough  of  the  facts  which  are  set  forth  in  the 
complaint  are  established  by  the  evidence,  without  substantial 
conflict,  to  constitute  a  good  cause  of  action,  then  the  nonsuit 
should  not  have  been  granted,  although  other  allegations  are 
not  proven. 

fo.  Many  arguments,  objections,  and  criticisms  are  presented 
in  opposition  to  the  rules  and  reasoning  of  the  former  opinion. 
It  is  contended  that  the  rule  that  each  land  owner  owns  abs 
lutely  the  percolating  waters  in  his  land,  with  the  right  to 
extract,  sell,  and  dispose  of  them  as  he  chooses,  regardless  of 
the  results  to  his  neighbor,  is  part  of  the  common  law,  and  as 
such  has  been  adopted  in  this  state  as  the  laW  of  the  land  by 
the  statute  of  April  13,  1850  (Stats.  1850,  219),  and  by  sec- 
tion 4468  of  the  Political  Code-,  and  that,  consequently,  it  is 
beyond  the  power  of  this  court  to  abrogate  or  change  it ;  that  ^^^ 
the  question  comes  clearly  within  the  doctrine  of  store  tZectsis; 
that  the  rule  above  stated  has  become  a  rule  of  property  in 
this  state  upon  the  faith  of  which  enormous  investments  have 
been  made,  and  that  it  should  not  now  be  departed  from,  even 
if  erroneous ;  that  even  if  the  question  were  an  open  one,  the 
adoption  of  the  doctrine  of  correlative  rights  in  percolating 
waters  would  hinder  or  prevent  all  further  developments  or  • 
use  of  underground  waters,  and  endanger  or  destroy  develop- 
ments already  made,  thus  largely  restricting  the  productive 
capacity  and  growth  of  the  state,  and  that,  therefore,  a  sound 
public  policy  and  regard  for  the  general  welfare  demand  the 
opposite  rule ;  that  the  doctrine  of  reasonable  use  of  percolat- 
ing waters  would  require  an  equitable  distribution  thereof 
among  the  different  land  owners  and  claimants  who  might 
have  rights  therein,  that  this  would  throw  upon  the  courts  the 
duty  and  burden  of  regulating  the  use  of  such  waters  and  the 
flow  of  the  wells  or  tunnels,  which  would  prove  a  duty  impos- 
sible of  performance ;  and,  finally,  that  if  this  rule  is  the  law 
as  to  percolating  waters,  it  must  for  the  same  reason  be  the 
law  with  regard  to  the  extraction  of  petroleum  from  the 
ground,  and,  if  so,  it  would  entirely  destroy  the  oil  develop- 
ment and  production  of  this  state,  and  for  that  reason,  also, 
that  it  is  against  public  policy  and  injurious  to  the  general 


248  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  idea  that  the  doctrine  contended  for  by  the  defendant 
is  a  part  of  the  common  law  adopted  by  our  statute,  and 
beyond  the  power  of  the  court  to  change  or  modify,  is  founded 
upon  the  misconception  of  the  extent  to  which  the  common  law 
is  adopted  by  such  statutory  provisions,  and  a  failure  to 
observe  some  of  the  rules  and  principles  of  the  common  law 
itself.  In  Crandall  v.  Woods,  8  Cal.  143,  the  court  approved 
the  following  rule,  quoting  from  the  dissenting  opinion  of 
Bronson,  J.,  in  Starr  v.  Child,  20  Wend.  149:  "I  think  no 
doctrine  better  settled  than  that  such  portions  of  the  law  of 
England  as  are  not  adapted  to  our  condition  form  no  part  of 
the  law  of  this  state.  This  exception  includes  not  only  such 
laws  as  are  inconsistent  with  the  spirit  of  our  institutions,  but 
such  as  are  framed  with  special  reference  to  the  physical 
condition  of  a  country  differing  widely  from  our  own.  It  is 
contrary  to  the  spirit  of  the  common  law  itself  to  apply  a  rule 
founded  on  a  particular  reason  to  a  case  where  that  reason 
utterly  fails."  .  .  . 

'  \^  The  true  doctrine  is,  that  the  common  law  by  its  own  princi-^ 
pies  adapts  itself  to  varying  conditions  and  modifies  its  own 
rules  so  as  to  serve  the  ends  of  justice  under  the  different 
circumstances,  a  principle  adopted  into  our  code  by  section 
3510  of  the  Civil  Code:  "When  the  reason  of  a  rule  ceases,'' 
so  should  the  rule  itself."  This  is  well  stated  in  Morgan  v. 
King,  30  Barb.  16:  "We  are  not  bound  to  follow  the  letter 
of  the  common  law,  forgetful  of  its  spirit ;  its  RULE  instead 
of  its  PRINCIPLE.  A  rule  of  law  applicable  to  the  fresh- 
water streams  of  England  may  be  wholly  inapplicable  to 
fresh-water  streams  in  this  country  of  the  same  nature  and 
character,  because  of  different  capacity,  or  because  the  adjoin- 
ing country  may  furnish  a  commerce  for  them  unknown  in 
England,  and  yet  be  subject  to  the  same  principle.  If  so,  the 
common  law  modifies  its  rules  upon  its  own  principles,  and 
conforms  them  to  the  wants  of  the  community,  the  nature, 
character,  and  capacity  of  the  subject  to  which  they  are  to  be 
applied."  In  Beardsley  v.  City  of  Hartford,  50  Conn.  542, 
47  Am.  Rep.  677,  the  court  says:  "It  is  a  well-settled  rule 
that  the  law  varies  with  the  varying  reasons  on  which  it  is 
founded.  This  is  expressed  by  the  maxim :  'Cessante  ratione, 
cessat  ipsa  lex.'  This  means  that  no  law  can  survive  the 


KATZ  v.  WALKINSHAW.  249 

reasons  on  which  it  is  founded.  It  needs  no  statute  to  change 
it;  it  abrogates  itself."  .  .  .  Whenever  it  is  found  that, 
owing  to  the  physical  features  and  character  of  this  state, 
and  the  peculiarities  of  its  climate,  soil  and  productions,  the 
application  of  a  given  common-law  rule  by  our  courts  tends 
constantly  to  cause  injustice  and  wrong,  rather  than  the  ad- 
ministration of  justice  and  right,  then  the  fundamental  princi- 
ples of  right  and  justice  on  which  that  law  is  founded,  and 
which  its  administration  is  intended  to  promote,  require  that 
a  different  rule  should  be  adopted,  one  which  is  calculated  to 
secure  persons  in  their  property  and  possessions,  and  to  pre- 
serve for  them  the  fruits  of  their  labors  and  expenditures. 
The  question  whether  or  not  the  rule  contended  for  is  a  part 
of  the  common  law  applicable  to  this  state  depends  on  whether 
it  is  suitable  to  our  conditions  under  the  rule  just  stated. 

It  is  necessary,  therefore,  to  state  the  conditions  existing 
in  many  parts  of  this  state  which  are  different  from  those 
existing  where  the  rule  had  its  origin. 

In  a  large  part  of  the  state,  and  in  almost  all  of  the  south- 
ern half  of  it,  particularly  south  of  the  Tehachapi  range  of 
mountains,  aside  from  grains,  grasses,  and  some  scant  pastur- 
age, there  is  practically  no  production  by  agriculture  except 
by  means  of  artificial  irrigation.  In  a  few  places  favored  by 
nature  crops  are  nourished  by  natural  irrigation,  due  to  the 
existence  underneath  the  ordinary  soil  of  a  saturated  layer 
of  sand  or  gravel,  but  these  places  are  so  few  that  they  are  of 
no  consequence  in  any  general  view  of  the  situation.  Irriga- 
tion in  these  regions  has  always  been  customary,  and  under 
the  Spanish  and  Mexican  governments  it  was  fostered  and 
encouraged.  Even  in  the  earlier  periods  of  the  settlement  of 
the  country,  after  its  acquisition  by  the  United  States,  and 
while  the  population  was  sparse  and  scattered  compared  to  the 
present  time,  the  natural  supply  of  water  from  the  surface 
streams,  as  diverted  and  applied  by  the  crude  and  wasteful 
methods  then  used,  was  not  considered  more  than  was  necessary. 
As  the  population  increased,  better  methods  of  diversion,  dis- 
tribution, and  aplication  were  adopted,  and  the  streams  were 
made  to  irrigate  a  very  much  larger  area  of  land.  While  this 
process  was  going  on  a  series  of  wet  years  augmented  the 
streams,  and  still  more  land  was  put  under  the  irrigating  sys- 


250  WATER  RIGHTS  AND  IRRIGATION  LAW. 

tems.  Recently  there  has  followed  another  series  of  very  dry 
years,  which  has  correspondingly  diminished  the  flow  of  the 
streams.  After  this  period  began  it  was  soon  found  that  the 
natural  streams  were  insufficient.  The  situation  became  criti- 
cal, and  heavy  loss  and  destruction  from  drought  was  immi- 
nent. Still  the  population  continued  to  increase,  and  with  it 
the  demand  for  more  water  to  irrigate  more  land.  Recourse 
was  then  had  to  the  underground  waters.  Tunnels  were  con- 
structed, more  artesian  wells  bored,  and  finally  pumps  driven 
by  electric  or  steam  power  were  put  into  general  use  to  obtain 
sufficient  water  to  keep  alive  and  productive  the  valuable  or- 
chards planted  at  the  time  when  water  was  supposed  to  be  more 
abundant.  The  geological  history  and  formation  of  the  country 
is  peculiar.  Deep  borings  have  shown  that  almost  all  of  the 
valleys  and  other  places  where  water  is  found  abundantly  in 
percolation  were  formerly  deep  canyons  or  basins,  at  the  bottoms 
of  which  anciently  there  were  surface  streams  or  lakes.  Gravel, 
boulders,  and  occasionally  pieces  of  driftwood  have  been  found 
near  the  coast  far  below  tide-level,  showing  that  these  sunken 
stream-beds  were  once  high  enough  to  discharge  water  by 
gravity  into  the  sea.  These  valleys  and  basins  are  bordered 
by  high  mountains,  upon  which  there  falls  the  more  abun- 
dant rain.  The  deep  canyons  or  basins  in  course  of  ages  have 
become  filled  with  the  washings  from  the  mountains,  largely 
composed  of  sand  and  gravel,  and  into  this  porous  material 
the  water  now  running  down  from  the  mountains  rapidly 
sinks  and  slowly  moves  through  the  lands  by  the  process  usu- 
ally termed  percolation,  forming  what  are  practically  under- 
ground reservoirs.  It  is  the  water  thus  held  or  stored  that 
is  now  being  taken  to  eke  out  the  supply  from  the  natural 
streams.  In  almost  every  instance  of  a  water  supply  from 
the  so-called  percolating  water,  the  location  of  the  well  or 
tunnel  by  which  it  is  collected  is  in  one  of  these  ancient 
canyons  or  lake  basins.  Outside  of  these  there  is  no  perco- 
lating water  in  sufficient  quantity  to  be  of  much  importance 
in  the  development  of  the  country  or  of  sufficient  value  to 
cause  serious  litigation.  It  is  usual  to  speak  of  the  extrac- 
tion of  this  water  from  the  ground  as  a  development  of  a 
hitherto  unused  supply.  But  it  is  not  yet  demonstrated  that 
the  process  is  not  in  fact,  for  the  most  part,  an  exhaustion 


KATZ  v.  "WALKINSHAW.  251 

of  the  underground  sources  from  which  the  surface  streams 
and  other  supplies  previously  used  have  been  fed  and  sup- 
ported. In  some  cases  this  has  been  proven  by  the  event. 
The  danger  of  exhaustion  in  this  way  threatens  surface 
streams  as  well  as  underground  percolations  and  reservoirs. 
Many  water  companies,  anticipating  such  an  attack  on  their 
water  supply,  have  felt  compelled  to  purchase,  and  have 
purchased,  at  great  expense,  the  lands  immediately  surround- 
ing the  stream  or  source  of  supply,  in  order  to  be  able  to 
protect  and  secure  the  percolations  from  which  the  source 
was  fed.  Owing  to  the  uncertainty  in  the  law,  and  the  ab- 
sence of  legal  protection,  there  has  been  no  security  in  titles 
to  water  rights.  So  great  is  the  scarcity  of  water  under 
the  present  demands  and  conditions  that  one  who  is  deprived 
of  water  which  he  has  been  using  has  usually  no  other  source 
at  hand  from  which  he  can  obtain  another  supply. 

The  water  thus  obtained  from  all  these  sources  is  now  used 
with  the  utmost  economy,  and  is  devoted  to  the  production 
of  citrus  and  other  extremely  valuable  orchard  and  vineyard 
crops.  The  water  itself,  owing  to  the  tremendous  need,  the 
valuable  results  from  its  application,  and  the  constant  effort 
to  plant  more  orchards  and  vineyards  to  share  in  the  great 
profits  realized  therefrom,  has  become  very  valuable.  In 
some  instances  it  has  been  known  to  sell  at  the  rate  of  fifty 
thousand  dollars  for  a  stream  flowing  at  the  rate  of  one 
cubic  foot  per  second.  Notwithstanding  the  great  drain  on 
the  water  supply,  the  economy  in  the  distribution  and  ap- 
plication, and  the  much  larger  area  of  land  thereby  brought 
under  irrigation,  there  still  remain  large  areas  of  rich  soil 
which  are  dry  and  waste  for  want  of  water.  This  abundance 
of  land,  with  the  scarcity  and  high  price  of  water,  furnish 
a  constant  stimulus  to  the  further  exhaustion  of  the  limited 
amount  of  underground  water,  and  a  constant  temptation 
to  invade  sources  already  appropriated.  The  charms  of  the 
climate  have  drawn,  and  will  continue  to  draw,  immigrants 
from  the  better  classes  of  the  eastern  states,  composed  largely 
of  men  of  experience  and  means,  energetic,  enterprising,  and 
resourceful.  With  an  increasing  population  of  this  char- 
acter, it  is  manifest  that  nothing  that  is  possible  to  be  done 
to  secure  success  will  be  left  undone,  and  that  there  must 


252  WATER  RIGHTS  AND  IRRIGATION  LAW. 

ensue  in  years  to  come  a  fierce  strife,  first  to  acquire  and 
then  to  hold  every  available  supply  of  water. 

It  is  scarcely  necessary  to  state  the  conditions  existing  in 
other  countries  referred  to,  to  show  that  they  are  vastly  dif- 
ferent from  those  above  stated.  There  the  rainfall  is  abun- 
dant, and  water,  instead  of  being  of  almost  priceless  value, 
is  a  substance  that  in  many  instances  is  to  be  gotten  rid  of 
rather  than  preserved.  Drainage  is  there  an  important  pro- 
cess in  the  development  of  the  productive  capacity  of  the 
land,  and  irrigation  is  unknown.  The  lands  that  from  their 
situation  in  this  country  are  classed  as  damp  lands  would  in 
those  countries  be  either  covered  by  lakes  or  would  be 
swamps  and  bogs.  If  one  is  deprived  of  water  in  those 
regions,  there  is  usually  little  difficulty  in  obtaining  a  suffi- 
cient supply  near  by,  and  at  small  expense.  The  country 
is  interlaced  with  streams  of  all  sizes  from  the  smallest 
brooklet  up  to  large  navigable  rivers,  and  the  question  of 
the  water  supply  has  but  little  to  do  with  the  progress  or 
prosperity  of  the  country. 

It  is  clear  also  that  the  difficulties  arising  from  the  scar- 
city of  water  in  this  country  are  by  no  means  ended,  but,  on 
the  contrary,  are  probably  just  beginning.  The  application 
of  the  rule  contended  for  by  the  defendants  will  tend  to 
aggravate  these  difficulties  rather  than  solve  them.  Traced 
to  its  true  foundation,  the  rule  is  simply  this :  That  owing  to 
the  difficulties  the  courts  will  meet  in  securing  persons  from 
the  infliction  of  great  wrong  and  injustice  by  the  diversion 
of  percolating  water,  if  any  property  right  in  such  water  is 
recognized,  the  task  must  be  abandoned  as  impossible,  and 
those  who  have  valuable  property  acquired  by  and  dependent 
on  the  use  of  such  water  must  be  left  to  their  own  resources 
to  secure  protection  for  their  property  from  the  attacks  of 
their  more  powerful  neighbors,  and  failing  in  this,  must 
suffer  irretrievable  loss;  that  might  is  the  only  protection. 

"The  good  old  rule 
Sufficeth  them,  the  simple  plan. 
That  they  should  take  who  have  the  power, 
And  they  should  keep  who  can." 

The  field  is  open  for  exploitation  to  every  man  who  covets 
the  possessions  of  another  or  the  water  which  contains  and 


KATZ  v.  WALKINSHAW.  253 

preserves  them,  and  he  is  at  liberty  to  take  that  water  if  he 
has  the  means  to  do  so,  and  no  law  will  prevent  or  interfere 
with  him  or  preserve  his  victim  from  the  attack.  The  diffi- 
culties to  be  encountered  must  be  insurmountable  to  justify 
the  adoption  or  continuance  of  a  rule  which  brings  about 
such  consequences. 

The  claim  that  the  doctrine  stated  by  Mr.  Justice  Temple 
is  contrary  to  all  the  decisions  of  this  court  is  not  sustained 
by  an  examination  of  the  cases.  The  decisions  have  not  been 
harmonious,  and  in  many  of  them  what  is  said  on  this  sub- 
ject is  mere  dictum.  A  brief  review  of  the  cases  will  dem- 
onstrate this  to  be  true.  In  Hanson  v.  McCue,  42  Cal.  303, 
10  Am.  Rep.  299, — the  first  case  on  the  subject, — it  was  not 
necessary  for  the  court  to  say  anything  at  all  with  respect 
to  the  right  of  a  land  owner  to  complain  of  a  diversion  of 
percolating  waters.  McCue's  predecessor  had  made  a  ditch 
leading  from  a  spring  on  his  land  across  a  tract  of  land 
belonging  to  Hanson's  predecessor,  and  terminating  upon  an- 
other tract,  also  owned  by  McCue's  predecessor,  through 
which  ditch  he  conducted  water  from  the  spring  across  the 
Hanson  tract  to  his  other  land.  This  ditch  in  its  course  over 
Hanson's  land  leaked  water  in  such  quantities  that  it  col- 
lected into  a  stream  which  Hanson  used  for  irrigation.  This 
was  the  only  foundation  for  the  right  which  Hanson  has  or 
claimed  to  the  water.  The  court  properly  held  that  he  had 
no  right  to  the  waste  water  and  that  McCue  was  not  bound 
to  continue  to  maintain  the  artificial  stream  for  Hanson  rs 
benefit,  but  could  by  any  means  he  chose  change  the  use 
of  the  spring  and  the  course  of  the  ditch.  The  fact  that 
the  change  was  made  by  intercepting  the  percolating  water 
which  fed  the  stream  was  not  material  to  the  case,  and  all 
that  is  said  as  to  the  right  to  do  so  is  dictum.  The  opinion, 
however,  does,  though  unnecessarily,  announce  and  approve 
the  doctrine  contended  for  by  the  respondent  here.  Huston 
v.  Leach,  53  Cal.  262,  decides  only  that  the  phrase  "waters 
of  said  spring,"  in  the  decree  of  the  court,  meant  defined 
streams  running  into  or  issuing  from  the  springs,  and  did 
not  include  the  percolations  which  fed  the  springs.  Hale  v. 
McLea,  53  Cal.  578,  referred  to  a  well-defined  though  very 
small  underground  stream,  flowing  through  fissures  in  the 


254  WATER  RIGHTS  AND  IRRIGATION  LAW. 

rocks,  and  has  no  relation  to  ordinary  percolating  water. 
The  court  held  that  the  defendant  could  not  cut  off  the  en- 
tire stream,  and  at  most  could  only  use  a  reasonable  portion 
thereof  as  an  upper  riparian  owner.  In  Cross  v.  Kitts,  69 
Cal.  217,  58  Am.  Rep.  558,  10  Pac.  409,  the  court  in  its 
opinion,  again  by  way  of  dictum,  announces  the  doctrine 
that  the  owner  of  the  soil  is  the  absolute  owner  of  the  per- 
colating water  therein;  but  the  decision  is  against  this  doc- 
trine. It  is  a  case  of  the  court  announcing  one  doctrine  and 
deciding  the  contrary.  The  plaintiff,  through  a  grant  from 
defendant's  predecessor,  owned  a  right  to  take  water  on  de- 
fendant's mining  claim  by  means  of  a  tunnel  which  served 
to  collect  the  percolating  water  into  a  small  stream  of  two 
miner's  inches,  which  flowed  out  of  the  tunnel  and  was  con- 
ducted by  pipes  to  plaintiff's  premises.  This  court  decided 
that  the  defendant  had  no  right  to  cut  off  the  percolations 
which  fed  the  stream  issuing  from  the  tunnel,  although  this 
was  done  in  the  legitimate  work  of  mining  his  own  land. 
The  decision  is  in  direct  conflict  with  the  dictum  in  Hanson 
v.  McCue,  42  Cal.  303,  10  Am.  Rep.  299,  and  is  in  accord 
with  the  principles  laid  down  by  Justice  Temple.  It  can  only 
be  distinguished  upon  the  ground  that  the  defendant  was 
estopped  by  the  grant  of  his  predecessor  to  use  the  land  so 
as  to  destroy  the  water  right  granted — a  distinction  which 
is  not  mentioned  or  referred  to  in  the  opinion.  The  dis- 
tinction made  in  the  opinion,  and  upon  which  the  decision 
in  Cross  v.  Kitts  is  based,  is,  that  when  percolating  waters 
are  gathered  into  a  defined  stream  by  means  of  a  tunnel,  the 
stream  is  property,  and  as  such  it  is  protected  by  law  from 
injury  or  destruction  by  the  diversion  of  such  percolating 
water  before  it  reaches  the  tunnel.  There  can  be  no  distinc- 
tion in  law  or  reason  between  a  stream  consisting  of  per- 
colating waters  gathered  together  by  means  of  a  tunnel  and 
one  gathered  by  means  of  an  artesian  well.  Therefore,  the 
case  supports  Justice  Temple's  conclusion.  The  only  point 
bearing  upon  the  case  at  bar  that  was  decided  in  Painter  v. 
Pasadena  L.  &  W.  Co.,  91  Cal.  74,  27  Pac.  539,  is,  that  the 
right  of  the  owner  of  land  to  the  water  percolating  therein 
may  be  reserved  in  a  grant  of  the  land,  and  that  this  right 
to  such  reserved  water  may  subsequently  be  transferred.  It 


KATZ  v.  WALKINSHAW.  255 

does  not  touch  the  question  of  the  extent  of  the  right  of 
the  land  owner  to  such  water,  as  against  the  adjoining  pro- 
prietors or  others  claiming  rights  in  it.  In  Southern  Pa- 
cific R.  R.  Co.  v.  Dufour,  95  Cal.  616,  30  Pac.  783,  19  L.  E.  A. 
92,  the  decision  was  put  upon  the  ground  that  the  excava- 
tion of  defendant,  which  caused  the  diversion  of  percolating 
water  of  which  plaintiff  complained,  was  made  upon  defend- 
ant's own  land  for  the  purpose  of  obtaining  the  water  for 
the  better  use  of  the  land,  which  it  was  held  he  had  the 
right  to  do,  although  it  destroyed  the  spring  or  stream 
claimed  by  the  plaintiff.  The  dictum  of  Hanson  v.  McCue 
was  approved.  The  decision  seems  to  be  in  conflict  with 
Cross  v.  Kitts,  although  the  latter  case  is  not  mentioned.  In 
Gould  v.  Eaton,  111  Cal.  639,  52  Am.  St.  Rep.  201,  44  Pac. 
319,  the  court  below  found  that  the  tunnel  complained  of 
gathered  and  discharged  a  stream  of  water  of  which  all  ex- 
cept one  and  forty-three  hundredths  miner's  inches  was  gath- 
ered from  percolating  waters  in  the  sandstone,  which  did 
not  come  from  the  channel  of  the  natural  stream.  It  was 
this  excess  only  which  was  in  issue.  The  finding  that  it  was 
percolating  water  was  held  to  be  conclusive  upon  the  appel- 
late court.  It  appeared  that  some  of  the  percolating  water 
thus  developed  would,  if  not  interrupted,  have  reached  the 
natural  stream.  The  court  adopts  and  approves  the  dictum 
of  Hanson  v.  McCue,  and  holds  that  the  plaintiff  had  no 
legal  right  to  enjoin  a  diminution  of  the  natural  stream 
caused  by  a  diversion  of  percolating  water  before  it  reached 
the  channel.  In  Los  Angeles  v.  Pomeroy,  12-1  Cal.  622,  57 
Pac.  585,  an  instruction  of  the  court  below  stating  the  dictum 
of  Hanson  v.  McCue  was  criticised  by  the  appellants,  not 
for  the  reason  that  it  restated  that  doctrine,  but  upon  the 
ground  that  it  did  not  class  as  percolating  waters  all  such 
water  as  might  be  found  in  the  sand  or  soil  underneath  the 
bed  of  a  stream  or  adjacent  thereto.  So  far  as  it  restated 
the  doctrine  of  Hanson  v.  McCue,  it  was  favorable  to  the  ap- 
pellants, and,  therefore,  they  did  not  object  to  that  part  of 
it.  The  court  held  that  it  was  not  subject  to  criticism  on  the 
ground  that  it  did  not  properly  define  percolating  waters. 
The  decision,  however,  cannot  be  taken  as  an  approval  of  the 
doctrine  of  Hanson  v.  McCue.  In  so  far  as  that  doctrine 


256  WATER  RIGIITS  AND  IRRIGATION  LAW. 

was  stated,  it  being  favorable  to  appellants,  it  was  not  pre- 
sented for  consideration  to  the  appellate  court.  The  objec- 
tion of  the  appellants,  and  the  point  considered  by  the 
appellate  court,  was  that  the  instruction  departed  from  the 
rule  quoted  in  Hanson  v.  McCue.  Inasmuch  as  the  writer 
of  this  opinion  was  also  the  writer  of  the  instruction  under 
consideration,  it  may  be  proper  to  say  that  he  did  not  give 
the  instruction  because  he  approved  that  part  of  it  restat- 
ing the  doctrine  of  Hanson  v.  McCue.  The  instruction  was 
given  because  an  instruction  embodying  that  doctrine  had 
been  requested  by  the  appellants  in  the  case,  and  the  re- 
spondents, the  plaintiffs,  believing  that  it  would  not  ma- 
terially affect  the  verdict,  consented  that  that  part  should 
be  given  in  substance,  rather  than  take  the  chances  of  a  re- 
versal of  the  case,  should  the  supreme  court  hold  its  refusal 
to  be  erroneous.  The  remarks  of  the  court  in  Vineland  Dis- 
trict v.  Azusa  District,  126  Cal.  494,  58  Pac.  1057,  46  L.  R, 
A.  820,  giving  the  ordinary  definition  of  percolating  waters, 
and  stating  the  rule  contended  for  by  the  defendant  as  ap- 
plying thereto,  call  for  no  discussion.  The  court  was  re- 
ferring to  this  solely  for  the  purpose  of  giving  the  proper 
meaning  to  the  word  "percolating"  as  used  in  the  findings, 
and  to  show  that  the  word  was  not  there  used  to  designate 
waters  which  were  not  a  part  of  the  subterranean  stream  un- 
der consideration.  In  Bartlett  v.  O'Connor  (Cal.),  36  Pac. 
513,  the  defendants,  with  the  intent  to  injure  the  plaintiff, 
attempted  to  reclaim  their  lands  by  drawing  off  the  per- 
colating water  through  an  artificial  ditch  away  from  the 
natural  stream.  It  appeared  that  this  could  have  been  done 
as  well  by  deepening  the  natural  channel  of  the  stream.  It 
was  held  to  be  an  unlawful  diversion.  This  comprises  all 
the  cases  on  the  subject. 

Excluding  the  cases  in  which  the  statement  of  the  doctrine 
of  absolute  ownership  is  dictum,  and  looking  to  what  has 
been  actually  decided,  we  have  remaining  only  Cross  v.  Kitts, 
69  Cal.  217,  58  Am.  Rep.  558,  10  Pac.  409,  holding  that  the 
owner  of  a  mining  claim,  whose  predecessor  had  granted  a 
stream  made  up  of  percolating  water  collected  by  means  of 
a  tunnel,  could  not,  even  in  the  ordinary  mining  of  his  own 
land,  interfere  with  the  flow  of  percolating  water  to  the 


KATZ  v.  WALKINSHAW.  257 

tunnel;  Southern  Pacific  R.  E.  Co.  v.  Dufour,  95  Cal.  616, 
30  Pac.  783,  19  L.  R.  A.  92,  holding  that  a  land  owner  can 
divert,  for  use  on  his  own  land,  percolating  water  which1 
feeds  a  spring  rising  on  the  land  and  flowing  to  an  adjoin- 
ing owner,  although  the  diversion  destroys  the  spring;  Bart- 
lett  v.  O'Connor  (Cal.),  36  Pac.  513,  holding  that  such  a 
diversion  cannot  be  made  in  the  process  of  draining  the  land 
for  reclamation,  where  the  draining  and  reclaiming  can  be 
accomplished  by  another  mode  without  diminishing  the 
stream,  and  the  mode  used  is  adopted  with  the  intention  to 
injure  the  lower  proprietor;  and  Gould  v.  Eaton,  111  Cal. 
639,  52  Am.  St.  Rep.  201,  44  Pac.  319,  declaring,  in  effect, 
that  percolating  water  may  be  prevented  from  reaching  a 
natural  stream  to  the  injury  of  a  riparian  owner,  although 
the  percolations  are  neither  taken  for  use  on  the  land  where 
the  diversion  is  made,  nor  in  the  use  or  reclamation  of  the 
land,  but  for  use  on  other  land  distant  from  both  the  stream 
and  the  percolations.  In  view  of  this  conflicting  and  uncer- 
tain condition  of  the  authorities,  it  cannot  be  successfully 
claimed  that  the  doctrine  of  absolute  ownership  is  well  estab- 
lished in  this  state.  It  is  -proper  to  state  that  in  all  the 
opinions  which  have  so  readily  quoted  and  approved  the  sup- 
posed common-law  rule,  that  injuries  from  interference  with 
percolating  waters  were  too  obscure  in  origin  and  cause,  too 
trifling  in  extent,  and  relatively  of  too  little  importance, 
as  compared  to  mining  industries  and  the  wants  of  large 
cities,  to  justify  or  require  the  recognition  by  the  courts  of 
any  correlative  rights  in  such  waters,  or  the  redress  of  such 
injuries,  there  has  been  no  notice  at  all  taken  of  the  condi- 
tions existing  here,  so  radically  opposite  to  those  prevailing 
where  the  doctrine  arose.  It  is  also  to  be  observed  that  in 
some  instances  in  the  eastern  states,  mentioned  in  the  former 
opinion  in  this  case,  the  injustice  from  the  diversion  of  per- 
colating waters  has  been  so  glaring  and  so  extensive  that  the 
court  there  was  compelled  to  depart  from  its  previously 
decided  cases  and  recognize  the  rights  of  adjoining  owners. 

We  do  not  see  how  the  doctrine  contended  for  by  defend-^ 
ant  could  ever  become  a  rule  of  property  of  any  value.     Its 
distinctive  feature  is  the  proposition  that  no  property  rights 
17 


258  WATER  RIGHTS  AND  IRRIGATION  LAW. 

exist  in  such  waters  except  while  they  remain  in  the  soil  of 
the  land  owner;  that  he  has  no  right  either  to  have  them 
continue  to  pass  into  his  land  as  they  would  under  natural 
conditions,  or  prevent  them  from  being  drawn  out  of  his 
land  by  an  interference  with  natural  conditions  on  neighbor- 
ing land.  Such  right  as  he  has  is,  therefore,  one  which  he 
cannot  protect  or  enforce  by  a  resort  to  legal  means,  and 
one  which  he  cannot  depend  on  to  continue  permanently  or 
for  any  definite  period. 

It  is  apparent  that  the  parties  who  have  asked  for  a  re- 
consideration of  this  case,  and  other  persons  of  the  same 
class,  if  the  rule  for  which  they  contend  is  the  law,  or  no 
law,  of  the  land,  will  be  constantly  threatened  with  danger 
of  utter  destruction  of  the  valuable  enterprises  and  systems 
of  waterworks  which  they  control,  and  that  all  new  enter- 
prises of  the  same  sort  will  be  subject  to  the  same  peril.  They 
will  have  absolutely  no  protection  in  law  against  others  hav- 
ing stronger  pumps,  deeper  wells,  or  a  more  favorable  situ- 
ation, who  can  thereby  take  from  the  unlimited  quantities  of 
the  water,  reaching  to  the  entire  supply,  and  without  regard 
to  the  place  of  use.  We  cannot  perceive  how  a  doctrine 
offering  so  little  protection  to  the  investments  in  and  prod- 
uct of  such  enterprises,  and  offering  so  much  temptation 
to  others  to  capture  the  water  on  which  they  depend,  can 
tend  to  promote  developments  in  the  future  or  preserve  those 
already  made,  and,  therefore,  we  do  not  believe  that  public 
policy  or  a  regard  for  the  general  welfare  demands  the  doc- 
trine. An  ordinary  difference  in  the  conditions  would 
scarcely  justify  the  refusal  to  adopt  a  rule  of  the  common 
law,  or  one  which  has  been  so  generally  supposed  to  exist ; 
but  where  the  differences  are  so  radical  as  in  this  case,  and 
would  tend  to  cause  so  great  a  subversion  of  justice,  a  differ- 
ent rule  is  imperative. 

The  doctrine  of  reasonable  use,  on  the  other  hand,  affords 
some  measure  of  protection  to  property  now  existing,  and 
greater  justification  for  the  attempt  to  make  new  develop- 
ments. It  limits  the  right  of  others  to  such  amount  of  water 
as  may  be  necessary  for  some  useful  purpose  in  connection 
with  the  land  from  which  it  is  taken.  If,  as  is  claimed  in  the 
argument,  such  water-bearing  land  is  generally  worthless  ex- 


KATZ  v.  WALKINSHAW.  259 

eept  for  the  water  which  it  contains,  then  the  quantity  that 
could  be  used  on  the  land  would  be  nominal,  and  injunctions 
could  not  be  obtained,  or  substantial  damages  awarded, 
against  those  who  carry  it  to  distant  lands.  So  far  as  the 
active  interference  of  others  is  concerned,  therefore,  the  dan- 
ger to  such  undertakings  is  much  less,  and  the  incentive  to 
development  much  greater,  from  the  doctrine  of  reasonable 
use  than  from  the  contrary  rule.  No  doubt  there  will  be 
inconvenience  from  attacks  on  the  title  to  waters  appropri- 
ated for  use  on  distant  lands  made  by  persons  who  claim  the 
right  to  the  reasonable  use  of  such  waters  on  their  own 
lands.  Similar  difficulties  have  arisen  and  now  exist  with 
respect  to  rights  in  surface  streams,  and  must  always  be  ex- 
pected to  attend  claims  to  rights  in  a  substance  so  movable 
as  water.  But  the  courts  can  protect  this  particular  species 
of  property  in  water  as  effectually  as  water  rights  of  any 
other  description. 

It  may  indeed  become  necessary  to  make  new  applications 
of  old  principles  to  the  new  conditions,  and  possibly  to 
modify  some  existing  rules,  in  their  application  to  this  class 
of  property  rights;  and,  in  view  of  the  novelty  of  the  doc- 
trine, and  the  scope  of  argument,  it  is  not  out  of  place  to 
indicate  to  some  extent  how  it  should  be  done,  although  other- 
wise it  would  not  be  necessary  to  the  decision  of  the  case. 
The  controversies  arising  will  naturally  divide  into  classes. 

There  will  be  disputes  between  persons  or  corporations 
claiming  rights  to  take  such  waters  from  the  same  strata  or 
source  for  use  on  distant  lands.  There  is  no  statute  on  this 
subject,  as  there  is  now  concerning  appropriations  of  surface 
streams,  but  the  case  is  not  without  precedent.  When  the 
pioneers  of  1849  reached  this  state  they  found  no  laws  in 
force  governing  rights  to  take  waters  from  surface  streams 
for  use  on  nonriparian  lands.  Yet  it  was  found  that  the 
principles  of  the  common  law,  although  not  previously  ap- 
plied to  such  cases,  could  be  adapted  thereto,  and  were  suffi- 
cient to  define  and  protect  such  rights  under  the  new 
conditions.  The  same  condition  existed  with  respect  to  rights 
to  mine  on  public  land,  and  a  similar  solution  was  found. 
(Kelly  v.  Natoma  W.  Co.,  6  Cal.  108 ;  Conger  v.  Weaver,  6 
Cal.  557,  65  Am.  Dec.  528;  Eddy  v.  Simpson,  3  Cal.  253,  58 


260  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Ain.  Dec.  408;  Hill  v.  Newman,  5  Cal.  446,  63  Am.  Dec. 
140;  McDonald  v.  Bear  River  etc.  Co.,  13  Cal.  233.)  The 
principles  which,  before  the  adoption  of  the  Civil  Code,  were 
applied  to  protect  appropriations  and  possessory  rights  in 
visible  streams  will,  in  general,  be  found  applicable  to  such 
appropriations  of  percolating  waters,  either  for  public  or 
private  use,  on  distant  lands,  and  will  suffice  for  their  protec- 
tion as  against  other  appropriators.  Such  rights  are  usu- 
fructuary only,  and  the  first  taker  who  with  diligence  puts 
the  water  in  use  will  have  the  better  right.  And  in  ordi- 
nary cases  of  this  character,  the  law  of  prescriptive  titles  and 
rights  and  the  statute  of  limitations  will  apply. 

In  controversies  between  an  appropriator  for  use  on  dis- 
tant land  and  those  who  own  land  overlying  the  water-bear- 
ing strata,  there  may  be  two  classes  of  such  land  owners: 
those  who  have  used  the  water  on  their  land  before  the  at- 
tempt to  appropriate,  and  those  who  have  not  previously  used 
it,  but  who  claim  the  right  afterward  to  do  so.  Under  the 
decision  in  this  case  the  rights  of  the  first  class  of  land  own- 
ers are  paramount  to  that  of  one  who  takes  the  water  to 
distant  land;  but  the  land  owner's  right  extends  only  to  the 
quantity  of  water  that  is  necessary  for  use  on  his  land,  and 
the  appropriator  may  take  the  surplus.  As  to  those  land  */ . 
owners  who  begin  the  use  after  the  appropriation,  and  who, 
in  order  to  obtain  the  water,  must  restrict  or  restrain  the 
diversion  to  distant  lands  or  places,  it  is  perhaps  best  not 
to  state  a  positive  rule  until  a  case  arises.  Such  rights  are 
limited  at  most  to  the  quantity  necessary  for  use,  and  the 
disputes  will  not  be  so  serious  as  those  between  rival  appro- 
priators. 

Disputes  between  overlying  land  owners,  concerning  water 
for  use  on  the  land,  to  which  they  have  an  equal  right,  in 
cases  where  the  supply  is  insufficient  for  all,  are  to  be  set- 
tled by  giving  to  each  a  fair  and  just  proportion.  And  here 
again  we  leave  for  future  settlement  the  question  as  to  the 
priority  of  rights  between  such  owners  who  begin  the  use 
of  the  water  at  different  times.  The  parties  interested  in 
the  question  are  not  before  us. 

In  addition,  there  are  some  general  rules  to  be  applied.*^ 
In  cases  involving  any  class  of  rights  in  such  waters,  pre- 


KATZ  v.  WALKINSHAW.  261 

liminary  injunctions  must  be  granted,  if  at  all,  only  upon 
the  clearest  showing  that  there  is  imminent  danger  of  ir- 
reparable and  substantial  injury,  and  that  the  diversion  com- 
plained of  is  the  real  cause.  Where  the  complainant  has 
stood  by  while  the  development  was  made  for  public  use,  and 
has  suffered  it  to  proceed  at  large  expense  to  successful 
operation,  having  reasonable  cause  to  believe  it  would  affect 
his  own  water  supply,  the  injunction  should  be  refused  and 
the  party  left  to  his  action  for  such  damages  as  he  can  prove. 
(Fresno  etc.  Co.  v.  Southern  Pacific  Co.,  135  Cal.  202,  67 
Pac.  773;  Southern  California  Ry.  Co.  v.  Slauson,  138  Cal. 
342,  94  Am.  St.  Rep.  58,  71  Pac.  352.)  If  a  party  makes 
no  use  of  the  water  on  his  own  land,  or  elsewhere,  he  should 
not  be  allowed  to  enjoin  its  use  by  another  who  draws  it  out 
or  intercepts  it,  or  to  whom  it  may  go  by  percolation,  al- 
though perhaps  he  may  have  the  right  to  a  decree  settling  his 
right  to  use  it  when  necessary  on  his  own  land,  if  a  proper 
case  is  made. 

The  objection  that  this  rule  of  correlative  rights  will  throw 
upon  the  court  a  duty  impossible  of  performance,  that  of 
apportioning  an  insufficient  supply  of  water  among  a  large 
number  of  users,  is  largely  conjectural.  No  doubt  cases  can 
be  imagined  where  the  task  would  be  extremely  difficult,  but 
if  the  rule  is  the  only  just  one,  as  we  think  has  been  shown, 
the  difficulty  in  its  application  in  extreme  cases  is  not  a  suffi- 
cient reason  for  rejecting  it  and  leaving  property  without 
any  protection  from  the  law. 

It  does  not  necessarily  follow  that  a  rule  for  the  govern- 
ment of  rights  in  percolating  water  must  also  be  followed 
as  to  underground  seepages  or  percolations  of  mineral  oil. 
Oil  is  not  extracted  for  use  in  agriculture,  or  upon  the  land 
from  which  it  is  taken,  but  solely  for  sale  as  an  article  of 
merchandise  and  for  use  in  commerce  and  manufactures. 
The  conditions  under  which  oil  is  found  and  taken  from  the 
earth  in  this  state  are  in  no  important  particulars  different 
from  those  present  in  other  countries  where  it  is  produced. 
There  is  no  necessary  parallel  between  the  conditions  respect- 
ing the  use  and  development  of  water  and  those  affecting  the 
production  of  oil.  Whether  in  a  contest  between  two  oil- 
producers  concerning  the  drawing  out  by  one  of  the  oil  from 


262  WATER  EIGHTS  AND  IRRIGATION  LAW. 

under  the  land  of  the  other,  we  should  follow  the  rule  adopted 
by  the  courts  of  other  oil-producing  states,  or  apply  a  rule 
better  calculated  to  protect  oil  not  actually  developed,  is  a 
question  not  before  us  and  which  need  not  be  considered. 

With  regard  to  the  doctrine  of  reasonable  use  of  perco- 
lating waters,  we  adhere  to  the  views  expressed  in  the  former 
opinion. 

The  judgment  of  the  court  below  is  reversed  and  a  new 
trial  ordered. 

McFarland,  J.,  Van  Dyke,  J.,  Henshaw,  J.,  Lorigan,  J., 
and  Beatty,  C.  J.,  concurred. 

TEMPLE  J. — This  appeal  is  taken  from  a  judgment  of 
nonsuit  entered  against  plaintiffs  on  motion  of  defendant. 

The  action  was  brought  to  enjoin  defendant  from  drawing 
off  and  diverting  water  from  an  a'rtesian  belt,  which  is  in 
part  on  or  under  the  premises  of  plaintiffs,  and  to  the  water 
of  which  they  have  sunk  wells,  thereby  causing  the  water  to 
rise  and  flow  upon  the  premises  of  plaintiffs,  and  which  they 
aver  had  constantly  so  flowed  for  twenty  years  before  the 
wrong  complained  of  was  committed  by  defendant.  The 
water  is  necessary  for  domestic  purposes  and  for  irrigating 
the  lands  of  plaintiffs,  upon  which  there  are  growing  trees, 
vines,  shrubbery,  and  other  plants,  which  are  of  great  value 
to  plaintiffs.  All  of  said  plants  will  perish,  and  plaintiffs 
will  be  greatly  and  irreparably  injured  if  the  defendant  is 
allowed  to  divert  the  water. 

These  facts  are  admitted,  and  further,  that  defendant  is  ^ 
diverting  the  water  for  sale,  to  be  used  on  lands  of  others 
distant  from  the  saturated  belt    from    which    the    artesian 
water  is  derived. 

The  plaintiffs  contend  that  this  subsurface  water  consti- 
tutes an  underground  stream,  and  that  plaintiffs  are  riparian 
thereto,  and  as  such  riparian  owners  they  are  seeking  relief 
in  this  case. 

The  defendant  denies  that  she  is  taking  or  diverting  the 
water  from  an  underground  stream  or  watercourse,  and  al- 
leges that  all  the  water  which  rises  in  the  artesian  wells  on 
her  premises,  and  which  she  is  selling,  is  percolating  water 
and  is  parcel  of  her  premises,  and  her  property. 


KATZ  v.  WALKINSHAW.  263 

In  effect,  therefore,  while  denying  that  she  is  doing  any 
act  of  which  plaintiffs  can  complain,  she  really  only  denies 
that  she  is  diverting  water  from  an  underground  watercourse, 
and  asserts  her  right  to  dispose  of  the  water  in  the  manner 
alleged,  because  it  is  percolating  water,  not  confined  to  a 
definite  watercourse. 

The  court  sustained  that  proposition,  and  for  that  reason 
granted  defendant's  motion  for  nonsuit. 

The  so-called  artesian  belt  includes  several  square  miles 
of  territory.  It  is  a  large  accumulation  of  earth  upon  the 
base  of  very  high  mountains,  and  is  composed  of  detritus  of 
varying  quantity  and  material,  with  no  regular  stratification. 
Wells  have  been  sunk  at  least  to  the  depth  of  seven  hundred 
and  fifty  feet,  but  no  bedrock  has  been  found.  It  has  quite 
an  incline  from  the  mountain,  and  is  from  seven  hundred 
to  fifteen  hundred  feet  above  sea  level.  Mr.  F.  C.  Finkle, 
a  civil  engineer,  was  the  chief  witness  for  the  plaintiffs,  and 
testified  both  as  to  facts  palpable  to  the  senses  and  as  an  ex- 
pert. He  says  the  saturated  land  is  fed,  first,  by  the  under- 
flow from  the  numerous  ravines,  canyons,  and  streams  which 
enter  the  valley  from  the  mountains;  and  secondly,  by  the 
rain  and  flood  water  upon,  and  absorbed  upon  the  slope  and 
between  the  artesian  belt  and  the  mountains.  This  water 
percolating  down  into  the  soil,  and  constantly  pressed  forward 
by  water  accumulating,  finally  gets  under  partially  impervious 
earth,  where  it  is  held  under  sufficient  pressure  to  create  the 
artesian  belt.  The  banks  of  this  supposed  subsurface  stream, 
the  witness  thought,  were  on  the  west,  "a  cemented  dike 
which  runs  through  the  valley,  and  the  eastern  boundary  of 
it  is  the  clay  bank  or  dike  at  the  south  side  of  the  Santa  Ana 
river."  Within  these  limits  many  ravines  enter  from  the 
mountains,  some  of  them  carrying  at  times  great  quantities 
of  water,  much  of  which  has  been  appropriated  and  carried 
off  in  pipes  or  cemented  aqueducts. 

It  is  evident  that  if  there  is  any  flow  to  this  underground 
body  of  water  thus  held  under  pressure,  it  is  by  percolation. 
The  witness  stated  that  the  process  was  the  same  the  world 
over.  The  lower  lands  are  saturated  from  above.  "It  is 
done  by  saturation  from  the  rainfalls  and  the  floods,  and 
percolation  through  voids  in  the  soil." 


264  WATER  EIGHTS  AND  IRRIGATION  LAW. 

It  is  quite  manifest  that  this  body  (if  it  can  be  so  styled) 
of  percolating  water  cannot  be  called  an  underground  water- 
course to  which  riparian  rights  can  attach,  unless  we  are 
prepared  to  abolish  all  distinction  between  percolating  water 
and  the  water  flowing  in  streams  with  known  or  ascertain- 
able  banks  which  confine  the  water  to  definite  channels.  All 
rain  water  which  falls  upon  the  hills  and  mountain  sides 
which  does  not  flow  off  at  once  as  surface  water  is  absorbed 
and  percolates  down  in  the  same  way  to  the  valley  below. 
No  doubt  limits  can  be  found  to  every  such  flow,  as  in  this 
case.  The  distinction  is  well  established,  and,  in  some  re- 
spects, different  rules  of  law  applied  to  the  two  cases.  The 
plaintiffs,  therefore,  cannot  establish  their  claims  upon  the 
theory  of  an  underground  watercourse  to  which  they  are 
riparian.  .  .  . 

It  is  often  asserted  that  Acton  v.  Blundell,  12  Mees.  &  W. 
324,  decided  in  exchequer  chamber,  in  1843,  was  the  first 
case  in  England  in  regard  to  percolating  water.  This  shows 
how  unimportant,  relatively,  the  subject  is  in  England.  It 
was  an  action  for  damages  occasioned  by  working  a  coal  mine 
on  adjoining  land,  which  interfered  with  water  which  was 
flowing  underground  to  plaintiff's  spring.  The  court  in- 
structed the  jury,  "that  if  the  defendants  had  proceeded 
and  acted  in  the  usual  and  proper  manner  in  the  land  for 
the  purpose  of  working  and  mining  a  coal  mine  therein,  they 
might  lawfully  do  so."  This  instruction  was  held  to  be  cor- 
rect, and  that  is  the  real  force  and  effect  of  the  decision. 
But  the  chief  justice  pointed  out  some  respects  in  which  the 
right  to  water  flowing  in  an  open  visible  stream  differs  from 
an  underground  flow  by  percolation.  The  main  difference  so 
far  as  concerns  the  question  under  consideration  was  that 
percolation  was  occult,  the  regulation  of  which  was  a  difficult 
matter.  One  who  disturbed  the  course  of  percolating  water 
by  digging  upon  his  own  land  could  not  tell  whether  he 
would  drain  his  neighbor's  well,  nor  could  the  person  injured 
demonstrate  that  such  was  the  cause  of  the  injury.  So,  too, 
when  one  diverts  water  from  a  visible  stream,  the  fact  and 
the  effect  are  at  once  known,  while  as  to  percolating  water 
its  course  may  be  obstructed  or  changed  without  intent  to  do 
so,  and  without  knowing  that  such  would  be  the  effect  of 


KATZ  v.  WALKINSHAW.  265 

what  was  done.  His  lordship,  the  case  being  one  of  first  im- 
pression, quotes  a  passage  from  a  civil-law  writer  to  the  ef- 
fect that  when  one  digging  upon  his  own  land  drains  his 
neighbor's  well,  such  neighbor  has  no  cause  of  action:  Si  non 
animo  vicini  nocendi,  sed  suum  agrum  meliorem  faciendi,  id 
fecit.  His  lordship,  however,  although  the  case  did  not  re- 
quire it,  disregarded  the  qualifications  found  in  the  civil  law, 
and  held  that  the  case  was  not  governed  by  law  which  ap- 
plies to  flowing  streams,  ' '  but  that  it  rather  falls  within  that 
principle  which  gives  to  the  owner  of  the  soil  all  that  lies 
beneath  the  surface;  that  the  land  immediately  below  is  his 
property,  whether  it  is  solid  rock,  or  pervious  ground,  or 
venous  earth,  or  part  soil  and  part  water;  that  the  person 
who  owns  the  surface  may  dig  therein,  and  apply  all  that 
is  there  found  to  his  own  purposes  at  his  free  will  and  pleas- 
ure; and  that  if,  in  the  exercise  of  this  right,  he  intercepts 
or  drains  off  the  water  collected  from  underground  springs 
in  his  neighbor's  well,  this  inconvenience  to  his  neighbor 
falls  within  the  description  of  damnum  absque  injuria,  which 
cannot  become  the  ground  of  an  action." 

This  statement  has  been  frequently  quoted,  both  in  Eng- 
land and  in  this  country,  and  has  been  generally  adopted 
as  a  correct  statement  of  the  law  upon  the  subject.  In  Acton 
v.  Blundell,  12  Mees.  &  W.  324,  as  has  been  said,  the  work- 
ing of  a  mine  upon  an  adjoining  estate  drained  certain 
springs  on  plaintiff's  land.  It  would  have  been  sufficient  to 
defeat  plaintiff's  action  to  have  said  that  the  working  of  a 
coal  mine  in  a  proper  manner  is  a  reasonable  use  of  land, 
and  that  it  was  without  malice  or  an  intent  to  injure  plain- 
tiff. It  is  a  general  rule — in  fact,  a  universal  principle  of 
law — that  one  may  make  reasonable  use  of  his  own  property, 
although  such  use  results  in  injury  to  another.  But  the 
maxim,  Cujus  est  solum,  ejus  est  esque  ad  inferos,  furnishes 
a  rule  of  easy  application,  and  saves  a  world  of  judicial 
worry  in  many  cases.  And  perhaps  in  England  and  in  our 
eastern  states  a  more  thorough  and  minute  consideration  of 
the  equities  of  parties  may  not  often  be  required.  The  case 
is  very  different,  however,  in  an  arid  country  like  southern 
California,  where  the  relative  importance  of  percolating  water 
and  water  flowing  in  definite  watercourses  is  greatly  changed. 


266  WATER  RIGHTS  AND  IRRIGATION  LAW. 

And  it  seems  to  me  a  great  mistake  is  made  in  supposing 
that  if  the  plenary  property  of  a  land  owner  in  percolating 
water  is  denied,  the  alternative  is  to  apply  to  such  water  all 
the  rules  which  apply  to  the  use  of  water  flowing  in  water- 
courses having  defined  channels.  The  entire  argument  for 
what  may  be  called  the  cujus  est  solum  doctrine  consists  in 
showing  that  some  recognized  regulation  of  riparian  rights 
would  be  inapplicable.  It  is  said,  for  instance,  that  the  law 
of  riparian  rights  requires  each  proprietor  to  permit  the 
water  to  flow  as  it  was  accustomed  to  flow.  Apply  this  rule 
to  subsurface  water,  and  no  one  could  drain  his  land,  for 
he  thereby  prevents  the  water  from  flowing  as  it  was  ac- 
customed to  flow  by  percolation  to  his  neighbor.  The  com- 
mon-law method  in  the  supposed  case  would  be  to  apply  the 
principle  to  the  new  case,  although  some  judge-made  rule  as 
to  how  it  shall  be  applied  might  stand  in  the  way.  The 
principle  is  clearly  applicable.  A  riparian  owner  may  not 
divert  the  water  because  he  would  thereby  injure  his  neigh- 
bors who  have  equal  rights  in  the  stream.  Still  he  may  take 
a  reasonable  amount  from  the  stream  for  domestic  purposes, 
and  that  may  equal  the  entire  flow,  although  he  thereby  in- 
jures his  neighbors.  It  is  a  question  of  reasonable  use,  and 
that  applies  both  to  the  land  of  the  person  disturbing  the 
percolation  and  to  adjoining  land.  He  may  cultivate  his 
land,  and  for  that  purpose  ordinarily  may  drain  it,  and  plow 
it,  or  clear  from  it  forests,  although  all  these  operations  may 
affect  the  flow  of  water  to  the  lower  proprietor,  both  in  the 
watercourse  and  by  percolation.  He  was  allowed  to  become 
the  owner  for  those  purposes,  and  with  the  understanding  that 
all  other  proprietors  have  the  same  right  to  use  their  land. 
The  maxim,  "Sic  utere,"  etc.,  plainly  applies  as  between 
such  proprietors,  very  much  as  it  does  between  different  ri- 
parian proprietors  upon  the  same  stream.  .  .  . 

This  rule  of  reasonable  use  answers  most  effectually  the 
main  argument  against  recognizing  any  modification  of  the 
cujus  est  solum  doctrine  as  applied  to  percolating  water,  al- 
though in  a  majority  of  the  cases  which  are  claimed  as  au- 
thority against  the  rule  of  reasonable  use  the  court  takes  pains 
to  note  that  the  act  which  disturbs  the  percolating  water 


MCCLINTOCK  v.  HUDSON.  267 

was  in  using  the  land  in  the  usual  manner  and  without  the 
intent  of  injuring  a  neighbor.  .  .  . 

But  by  far  the  most  satisfactory  case  upon  the  subject  is 
Bassett  v.  Salisbury  Mfg.  Co.,  43  N.  H.  569.  That  was  a 
most  elaborately  considered  case,  and  this  precise  question  is 
discussed  with  a  fullness  and  ability  which  I  am  not  so  vain 
as  to  think  I  could  improve  upon.  I  would  like  to  transcribe 
the  entire  argument,  but  as  it  is  accessible  to  the  profession, 
I  need  only  say  I  adopt  it  in  full.  The  decision  was  ap- 
proved in  Swett  v.  Cutts,  50  N.  H.  439,  9  Am.  Rep.  276.  .  .  . 

Still  this  court  was  not  called  upon,  and  did  not  consider 
any  such  question.  I  think  it  clear  that  the  American  cases 
do  not  require  us  to  hold  that  the  maxim  "Sic  utere  tuo" 
does  not  limit  the  right  of  the  land  owner  to  the  use  of  the 
subsurface  water,  but,  on  the  contrary,  all  the  cases  in  which 
the  question  has  been  discussed  held,  or  admit,  that  such 
maxim  should  limit  such  right  where  justice  requires  it. 
Such,  I  think,  is  the  proper  rule. 

It  follows  that  the  court  erred  in  granting  the  nonsuit,  and 
the  judgment  is  therefore  reversed  and  a  new  trial  ordered. 


Percolating  Waters  —  Excavation  in  Permeable  Material  Re- 
ducing  the  Stream, 

WILLIAM  O.  McCLINTOCK,  Respondent,  v.  VICTORIA 

HUDSON  et  al.,  Appellants.  '^*-^f 

(141  Cal.  275,  74  Pac.  849.) 

SHAW,  J.  —  Judgment  was  given  in  the  court  below  in 
favor  of  the  plaintiff.     The  defendants  moved  for  a  new  trial,       f^A—. 
and  their  motion  having  been  denied,  they  now  appeal  from 
the  order  denying  the  same. 

The  complaint  alleges  that  the  plaintiff  is  the  owner  of 
a  certain  tract  of  land  in  Los  Angeles  county,  and  of  all  the 
subterranean  water  flowing  therein  and  percolating  through 
the  soil  thereof  ;  that  the  plaintiff  has  made  an  excavation  and 
constructed  a  tunnel,  whereby  a  portion  of  the  subterranean 


268  WATER  RIGHTS  AND  IRRIGATION  LAW. 

waters  percolating  through  the  soil  is  collected;  that  the  ex- 
cavation and  the  tunnel  and  the  waters  thereby  collected  are 
entirely  upon  the  land  described,  and  are  the  property  of  the 
plaintiff,  and  that  the  defendants  claim  some  right  or  title  to 
the  subterranean  waters  in  the  land  which  is  without  founda- 
tion. Whereupon  they  ask  that  their  title  to  the  property  be 
quieted.  The  land  described  in  the  complaint  comprises 
about  thirty-five  or  forty  acres. 

The  defendants  answered,  denying  the  allegation  that  the 
plaintiff  owns  the  subterranean  waters  flowing  and  percola- 
ting in  the  soil  of  the  land  described,  and  alleging  that  the 
land  of  the  plaintiff,  and  also  a  number  of  tracts  of  land 
owned  by  the  defendants  respectively,  each  border  upon  and 
are  riparian  to  a  certain  stream  of  water  known  as  San  JosejX 
creek,  which  is  a  stream  carrying  during  the  dry  season  about 
five  hundred  miner's  inches  of  water;  that  the  plaintiff  and 
the  defendants,  in  connection  with  other  riparian  owners, 
were  each  entitled  to  use  a  portion  of  this  water  for  the  ir- 
rigation of  their  respective  tracts  of  land;  that  all  the  water 
of  the  creek  was  necessary  for  that  use,  and  that  all  the  par- 
ties, including  the  plaintiff,  had  for  many  years  diverted  all 
the  water  of  the  creek  and  used  the  same  for  irrigation  of 
their  respective  tracts  of  land;  that  the  plaintiff,  by  means 
of  the  excavation  and  tunnel  mentioned  in  the  complaint,  had 
collected  together  within  his  said  tract  of  land  a  stream  of 
water  amounting  to  about  one  hundred  miner's  inches  of 
water,  which  was  composed  of  the  percolating  and  subter- 
ranean waters  flowing  through  and  under  the  plaintiff's  land; 
that  this  water  so  collected  had  been  taken  out  by  the  plain- 
tiff and  carried  to  land  which  does  not  belong  to  him,  and 
which  is  not  riparian  to  said  creek,  and  which  has  no  right 
whatever  to  any  of  the  waters  of  the  creek ;  that  if  this  water 
so  collected  is  allowed  to  be  taken  out  by  the  plaintiff,  the 
amount  of  water  flowing  below  in  the  bed  of  the  creek  will  be 
diminished  by  the  amount  that  is  so  collected  by  the  tunnel, 
and  that  the  defendants  will  thereby  be  deprived  of  the  right 
to  use  that  amount  of  the  water  flowing  in  the  creek.  The 
same  allegations  are  repeated  by  way  of  cross-complaint,  and 
there  is  a  prayer  that  the  plaintiff  be  enjoined  from  continu- 
ing to  gather  and  divert  the  water  by  means  of  his  tunnel. 


McCLiNTOCK  v.  HUDSON.  269 

The  court  finds  that  the  waters  collected  and  gathered  by 
the  tunnel,  and  flowing  out  of  the  same,  consist  of  waters 
percolating  in  the  soil  of  the  plaintiff's  land,  and  do  not  con- 
stitute any  part  of  the  waters  of  the  creek;  that  there  is 
not,  and  has  not  been,  at  any  time  any  subterranean  stream 
or  streams,  or  any  other  waters,  surface  or  subterranean,  in 
the  land  of  the  plaintiff  which  contributed  in  any  manner 
to  the  flow  of  the  creek;  that  the  defendants  owned  no  part 
of  the  waters  gathered  or  collected  by  the  plaintiff  by  means 
of  the  tunnel  and  excavation,  and  that  the  taking  of  the 
water  by  the  plaintiff  through  the  tunnel  and  excavation  did 
not  diminish  the  supply  of  the  water  to  which  the  defendants 
were  entitled. 

The  evidence  tends  very  strongly  to  show  that  it  did  con- 
stitute a  part  of  that  watercourse.  The  topography  of  the 
country  and  the  situation  of  San  Jose  creek,  with  the  char- 
acter of  its  bed  are  alone  almost  sufficient  to  prove  this  fact. 
San  Jose  creek  at  that  point,  when  there  is  any  water  flowing 
in  it  at  all,  runs  in  a  shallow  channel,  situated  in  the  bottom 
of  a  gulch,  or  ravine,  about  one  hundred  feet  wide,  with 
banks  something  over  twenty  feet  in  height.  This  gulch,  or 
ravine,  has,  in  close  proximity  on  each  side,  a  range  of  hills. 
Above,  in  the  same  valley,  the  ranges  of  hills  separate  and 
form  a  considerably  wider  valley,  so  that  the  entire  water- 
shed contributing  to  the  flow  of  the  creek  comprises,  accord- 
ing to  the  testimony,  some  serventy  square  miles,  the  water 
from  all  of  which,  if  ordinary  conditions  prevailed,  would  be 
forced  to  flow  down  the  narrow  part  of  the  valley  in  which 
the  plaintiff's  land  is  situated.  The  bed  of  the  creek  is  com- 
posed of  gravelly  material,  easily  permeated  by  water.  The 
excavation  commences  in  the  bed  of  the  stream,  and  about 
at  the  level  thereof,  and  for  a  distance  of  about  four  hun- 
dred feet  it  runs  almost  parallel  with  the  stream  at  a  distance 
of  not  more  than  fifty  feet  away,  and  at  an  elevation,  at  the 
upper  end  of  the  four  hundred  feet,  about  two  feet  below 
the  bottom  of  the  stream  bed.  The  tunnel  extends  from  the 
upper  extremity  of  this  excavation,  deflecting  somewhat  from 
the  course  of  the  stream,  and  runs  under  the  ground  four 
hundred  and  eighty  feet,  to  a  point  about  three  hundred  feet 
from  the  bed  of  the  stream,  and  some  four  feet  below  the 


270  WATER  RIGHTS  AND  IRRIGATION  LAW. 

bottom  of  the  bed.  The  bottom  of  the  tunnel  and  excavation 
throughout  its  course  consists  of  the  same  gravelly  material 
as  the  bed  of  the  stream.  The  evidence  shows  that,  in  the 
fall  of  1898,  when  the  tunnel  was  begun,  there  was  a  small 
surface  stream  of  water  flowing  in  the  bed  of  the  creek; 
that  when  it  was  completed  early  in  the  following  spring, 
and  even  before  its  completion,  the  stream  had  ceased  to 
flow,  a  thing  which  had  never  before  occurred  at  that  season ; 
and  that  from  that  time  until  the  trial,  in  the  fall  of  1899, 
there  had  been  no  water  flowing  in  the  creek  at  that  point. 
From  these  facts  the  conclusion  is  almost  irresistible  that 
the  excavation  and  the  tunnel  had  either  intercepted  some 
of  the  water  that  would  eventually  have  reached  the  stream, 
or  had  withdrawn  some  of  the  water  from  the  stream  by 
percolation  through  the  gravelly  material.  The  streams  of 
this  state,  in  their  course  through  the  lower  levels,  after  they 
have  left  the  precipitous  sides  of  the  mountains  on  which 
they  originate,  do  not  ordinarily  flow  over  beds:  of  rock  or 
other  material  impervious  to  water.  The  usual  condition 
is,  that  such  streams  flow  in  a  shallow  channel,  over  and 
through  a  mass  of  sand  and  gravel  saturated  with  water 
from  bedrock  up  to  or  slightly  above  the  level  of  the  surface 
of  the  stream. 

It  is  not  necessary,  however,  in  this  case  to  determine 
whether  or  not  the  court  was  wrong  in  refusing  to  charac- 
terize the  flow  of  underground  water,  which  the  plaintiff 
took  by  means  of  his  tunnel,  as  a  part  of  the  stream  and 
necessary  to  its  support  and  maintenance.  The  case  of  Katz 
v.  Wcdkinshaw,  141  Cal.  116,  99  Am.  St.  Rep.  35,  70  Pac. 
663,  74  Pac.  766,  64  L.  R.  A.  236,  ante,  p.  245,  decided 
November  28,  1903,  establishes  a  rule  with  respect  to  waters 
percolating  in  the  soil,  which  makes  it  to  a  large  extent 
immaterial  whether  the  waters  in  this  land  were  or  were  not 
a  part  of  an  underground  stream,  provided  the  fact  be  es- 
tablished that  their  extraction  from  the  ground  diminished 
to  that  extent,  or  to  some  substantial  extent,  the  waters  flow- 
ing in  the  stream.  By  the  principles  laid  down  in  that 
case  it  is  not  lawful  for  one  owning  land  bordering  upon  or 
adjacent  to  a  stream,  to  make  an  excavation  in  his  land  in 
order  to  intercept  and  obtain  the  percolating  water,  and 


v.  HUDSON.  271 

apply  such  water  to  any  use  other  than  its  reasonable  use 
upon  the  land  from  which  it  is  taken,  if  he  thereby  dimin- 
ishes the  stream  and  causes  damage  to  parties  having  rights 
in  the  water  there  flowing.  If,  therefore,  it  appears  in  this 
case  that  the  finding  of  the  court  that  the  water  taken  by 
the  plaintiff  did  not  diminish  the  waters  in  the  stream  is 
not  supported  by  the  evidence,  but  that,  on  the  contrary, 
the  evidence  shows  that  the  stream  was  substantially  dimin- 
ished thereby,  to  the  injury  of  the  defendants,  as  the  find- 
ing is  necessary  to  support  the  judgment,  the  case  must  be 
reversed  and  a  new  trial  had,  even  if  the  water,  when  taken, 
did  not  constitute  strictly  a  part  of  the  stream. 

The  court  below  manifestly  did  not  consider  that  this 
question  wag  of  any  consequence,  and,  having  concluded  that 
the  water  was  not  a  part  of  the  stream,  it  conceived  the 
idea  that  it  was  not  water  to  which  the  defendants  were 
entitled  in  law,  and  that,  consequently,  its  abstraction  did 
not  take  any  of  the  flow  of  the  stream  to  which  defendants 
were  entitled.  And  this  would  have  been  correct  if  the 
principle  had  not  been  established  in  Katz  v.  Walkinshaw, 
supra,  as  stated.  It  is  quite  clear  from  the  evidence  that 
the  court  erred  in  finding  that  the  stream  was  not  dimin- 
ished by  the  abstraction  of  the  water  by  the  plaintiff  by 
means  of  the  excavation  and  tunnel.  Three  hydraulic  en-^ 
gineers  testified  on  behalf  of  defendants,  and  each,  after 
describing  the  condition  and  character  of  the  material  com- 
posing the  bed  of  the  creek  and  the  bottom  of  the  tunnel, 
stated  that,  in  his  opinion,  necessarily,  whatever  water  was 
taken  from  the  excavation  and  tunnel  diminished  by  that 
much  the  amount  flowing  in  the  stream  below.  There  was 
no  evidence  to  the  contrary.  One  engineer  was  examined 
on  behalf  of  the  plaintiff  in  rebuttal,  but  he  was  not  asked 
whether  or  not,  in  his  opinion,  the  percolating  waters  gath- 
ered by  the  tunnel  would  eventually  reach  the  stream,  nor 
whether  or  not  the  waters  in  the  tunnel  came  from  the 
stream  through  the  permeable  material.  There  is  no  conflict 
in  the  direct  evidence  on  this  question,  and  the  circum- 
stances, generally,  tend  to  confirm  the  opinion  of  the  engi- 
neers. The  court  should  have  found  from  the  evidence  that 
there  was  a  diminution  of  the  stream  caused  by  the  taking 


272  WATER  RIGHTS  AND  IRRIGATION  LAW. 

out  of  the  water  through  the  excavation  and  tunnel.  Hav- 
ing found  this  fact,  it  would  then  be  the  duty  of  the  court 
to  ascertain  and  state  the  amount  of  the  diminution.  The*7 
plaintiff  has  no  right  to  a  decree  declaring  him  to  be  abso- 
lute owner  of  water  thus  taken  from  the  creek,  or  quieting 
his  title  thereto.  His  rights  therein  are  no  greater  than  they 
would  be  if  he  had  taken  the  water  directly  from  the  stream. 

There  is  no  finding  upon  the  allegation  that  the  plaintiff 
was  taking  this  water  to  distant  and  nonriparian  lands.  The 
court  below  probably  deemed  this  immaterial,  after  having 
found  that  the  water  taken  was  no  part  of  the  waters  of  the 
creek,  and  did  not  reduce  the  quantity  there  flowing.  The 
evidence  shows  clearly  that  the  water  in  question  was  taken 
beyond  the  boundaries  of  the  land  described  in  the  com- 
plaint, but  it  does  not  show  to  what  use  it  was  put  by  the 
plaintiff.  He  had  no  right,  however,  to  take  it  beyond  the  v 
lines  of  the  land  from  which  it  was  taken  and  divert  it 
from  the  stream,  either  to  let  it  go  to  waste  or  to  use  it  on 
other  lands.  The  motion  for  a  new  trial  should  have  been 
granted. 

The  order  appealed  from  is  reversed  and  the  cause  re- 
manded for  a  new  trial. 


Public  Use — Percolating  Waters — Form  of  Judgment. 

WILLIAM  NEWPORT  et  al.,  Appellants,  v.  TEMESCAL 

WATER  COMPANY,  Respondent. 
(149  Cal.  531,  87  Pac.  372,  6  L.  E.  A.,  N.  S.,  1098.) 

HENSHAW,  J— Perris  Valley  is  a  basin  of  forty  or  fifty 
square  miles  in  extent.  The  surface  soil  is  of  inferior  charac- 
ter, arid  and  alkaline.  At  a  depth  varying  from  eight  to 
forty  feet  below  the  surface  the  land  consists  of  unstratified 
silt,  detritus,  and  gravels.  The  voids  in  this  soil  carry  water, 
and  the  water-bearing  soils  are  from  one  hundred  to  four 
hundred  feet  deep.  Contiguous  to  Perris  Valley  is  Menefee 
Valley,  a  somewhat  similar  though  smaller  tract  of  land. 
The  surface  soil  of  the  Menefee  Valley  is  of  better  quality 


NEWPORT  v.  TEMESCAL,  WATER  Co.  273 

than  that  of  Ferris  Valley,  and,  like  the  latter,  rests  on. 
water-bearing  gravels.  The  Temescal  Water  Company,  de- 
fendant herein,  is  a  corporation  engaged  in  the  collection 
and  distribution  of  waters  for  the  use  of  its  stockholders 
and  others.  It  supplies  the  inhabitants  of  the  town  of 
Corona  with  water.  The  town  of  Corona,  with  a  popula- 
tion of  two  thousand  seven  hundred,  has  grown  up  depend- 
ent upon  the  water  supply  of  defendant,  and  property  to 
the  value  of  four  million  dollars  is  subject  to  complete  de- 
struction should  that  supply  fail.  Of  that  supply  all  except 
an  insignificant  portion  is  taken  by  defendant  from  Ferris 
Valley.  In  collecting  and  husbanding  this  water  and  deliv- 
ering it  to  its  consumers  the  defendant  has  expended  nearly 
a  million  dollars,  and  the  value  of  its  water  rights  and  other 
properties  is  at  least  two  million  dollars.  In  January,  1901, 
the  defendant  first  purchased  one  hundred  and  sixty  acres 
of  this  water-bearing  land  in  Ferris  Valley,  and  from  wells 
then  existing,  and  from  additional  wells  which  it  bored, 
pumped  water  from  the  underlying  saturated  gravels  and 
carried  it  through  its  flumes  and  conduits  for  about  forty 
miles  to  the  lands  of  its  stockholders  at  Corona.  Subse- 
quently, in  March,  1903,  the  defendant  purchased  three 
thousand  three  hundred  and  forty  additional  acres  of  like 
lands.  Thereafter  it  pumped  and  conveyed  from  its  lands 
so  acquired  six  hundred  or  more  miner's  inches  during  the 
irrigating  season  of  each  year.  Upon  March  1,  1904,  some 
six  land  owners  in  Ferris  Valley,  one  of  whom,  the  plaintiff 
Newport,  is  also  a  land  owner  in  the  Menefee  Valley,  brought 
this  action  for  an  absolute  injunction  to  restrain  the  defend- 
ant from  further  pumping  and  carrying  off  the  waters  of 
Ferris  Valley.  The  essential  allegations  of  their  complaint, 
upon  which  were  founded  their  demand  for  an  injunction, 
are  that  the  plane  of  saturation,  when  not  illegally  interfered 
with,  stands  from  within  eight  or  twenty  feet  of  the  sur- 
face of  the  ground;  that  upon  their  lands  were  growing 
trees,  vines,  grasses  and  shrubbery,  sustained  by  the  waters 
so  standing  at  this  level;  that  by  the  capillarity,  percolation, 
and  like  natural  forces,  these  waters  were  drawn  toward 
the  surface,  moistening  and  nourishing  the  roots  of  herbage 
18 


274  WATER  RIGHTS  AND  IRRIGATION  LAW. 

and  vegetation;  that  the  effect  of  the  pumping  of  defendant 
was  to  lower  the  plane  of  saturation  so  as  to  render  it  im- 
possible for  the  water  to  reach  the  roots  and  thus  to  destroy 
these  vegetable  growths. 

It  was  further  charged  that  each  of  the  plaintiffs  used, 
and  had  used,  large  quantities  of  the  water  for  surface  irri- 
gation for  the  growing  of  crops,  and  for  the  nourishing  of 
vines  and  trees;  that  this  lowering  of  the  water  plane  by 
defendant  made  pumping  more  difficult  and  expensive,  and 
would  in  time  deprive  plaintiffs  of  all  water.  Finally,  it 
was  alleged  that  Menefee  Valley,  with  Ferris  Valley,  formed 
a  part  of  one  and  the  same  catchment  basin,  and  that  the 
effect  of  defendant's  pumping  in  Ferris  Valley  was  to  lower 
the  plane  of  saturation  under  plaintiff  Newport's  land  in 
Menefee  Valley,  and  thus  to  work  the  same  disastrous  re- 
sult. The  defendant  answered  by  denying  the  alleged  acts 
and  the  resultant  damage.  It  denied  any  subterranean  con- 
nection between  the  water-bearing  gravels  of  Ferris  Valley 
and  Menefee  Valley,  and  alleged  that  these  valleys  were 
disconnected  and  were  in  different  watersheds.  As  to  the 
lands  in  Ferris  Valley,  it  denied  that  in  a  state  of  nature 
the  saturated  gravels  in  any  way  contributed  to  the  nourish- 
ment of  the  vegetation,  and  alleged  that  the  lands  were 
in  great  part  alkaline  and  unfit  for  husbandry,  and  could 
not  produce  fair  crops,  either  from  the  subsurface  waters 
or  from  surface  irrigation,  or  from  both.  Affirmatively 
it  alleged  that  underlying  the  surface  of  Ferris  Valley, 
and  but  a  few  feet  below  the  surface,  was  a  stratum  of 
hard-baked  clay  known  as  "hard-pan,"  below  which  stratum 
lay  the  saturated  gravels,  and  which  stratum  prevented  the 
capillary  drawing  of  the  waters  to  any  point  so  near  the  sur- 
face as  to  aid  vegetation;  that  the  effect  of  this  hard-pan 
was  to  turn  the  roots  of  the  trees,  shrubs,  and  grasses,  which 
could  not  penetrate  through  it,  giving  all  vegetation  but  a 
shallow  and  worthless  soil  in  which  to  endeavor  to  live; 
moreover,  that  when  surface  irrigation  was  attempted,  by 
reason  of  this  hard-pan,  the  waters  were  never  returned,  and 
never  could  return  to  the  underlying  gravels  from  which 
they  were  taken,  but  were  dissipated  and  wasted  by  evap- 
oration. As  affirmative  defenses  the  defendant  then  pleaded 


NEWPORT  v.  TEMESCAL  WATER  Co.  275 

ita  expenditures,  the  nature  of  its  works,  the  use  to  which 
it  had  been  putting  the  water,  the  knowledge  and  acquies- 
cence of  the  plaintiffs,  and  other  matters,  from  which  it 
asked  the  court  to  decree  that  plaintiffs'  cause  of  action  was 
barred  by  their  laches  and  by  estoppel. 

After  a  protracted  trial  the  court  found  in  favor  of  the 
defendant  upon  substantially  all  the  disputed  matters.  The 
findings  of  the  court  are  attacked  and  some  ninety-six  speci- 
fications are  set  forth  and  argued.  Plaintiffs'  opening  brief 
— three  hundred  and  sixty-six  pages  in  length — is  largely 
devoted  to  an  analysis  of  and  argument  upon  the  evidence 
in  their  endeavor  to  show  that  it  does  not  support  the  find- 
ings of  the  court.  The  transcript  contains  about  a  thousand 
pages  of  the  evidence.  To  follow  and  answer  plaintiffs' 
argument  would  amount  to  no  more  than  a  setting  forth  of 
the  evidence  which  does  sustain  the  findings,  and  to  do  this 
fairly  would  fill  a  volume  of  our  reports.  It  must  suffice, 
therefore,  to  say  that  a  critical  examination  satisfies  us  that 
the  findings,  one  and  all,  are  amply  supported.  But,  briefly 
to  illustrate  the  difficulty  of  discussing  the  findings  within 
the  broadest  lines  of  judicial  opinion,  the  finding  touching 
Menefee  Valley  may  be  instanced.  The  court  found :  ' '  That 
the  percolating  waters  in  said  Menefee  tract  do  not  connect 
with  the  percolating  waters  in  Ferris  Valley  so  that  the 
water  level  in  said  Menefee  Valley  has  been  or  can  be  affected 
by  pumping  water  from  lands  in  said  Ferris  Valley."  Upon 
this  question  a  vast  deal  of  evidence  was  introduced.  Upon 
the  part  of  the  plaintiff,  as  has  been  said,  it  was  contended 
that  the  subterranean  connection  between  the  two  tracts  of 
land  was  perfect,  that  the  percolation  and  filtration  wrere 
free,  and  that  the  direct  effect  of  the  pumping  of  defendant 
was  to  lower  the  water  level  in  Ferris  Valley  and  to  cause 
a  corresponding  lowering  of  the  level  in  Menefee.  Upon 
the  part  of  the  defendant  it  was  shown  that  there  was  a 
decided  ridge  and  elevation  of  ground  between  the  two  tracts, 
so  that  certainly  the  surface  flows  of  the  two  were  separate 
and  distinct.  Government  topographical  maps  were  intro- 
duced to  show  that  the  drainage  of  the  basin  of  Ferris  Val- 
ley was  down  the  San  Jacinto  river  westerly  to  Lake  Elsi- 
nore,  while  the  drainage  of  the  basin  of  Menefee  Valley 


276  WATER  EIGHTS  AND  IRRIGATION  LAW. 

was  distinctly  separate  and  trended  southwesterly  through 
Salt  creek.  Expert  witnesses  were  likewise  distinct.  Cer- 
tain of  defendants'  experts  declared  their  belief  in  the  exist- 
ence of  a  more  compact  earth  formation  between  Menefee 
and  Ferris  valleys  which  would  effectually  prevent  and  for- 
bid anything  like  a  free  seepage  or  percolation  of  waters. 
Defendant,  in  support  of  this,  urges  the  existence  of  dry 
wells  upon  this  divide, — that  is  to  say,  that  wells  dug  upon 
either  side  of  it  in  Ferris  Valley  or  Menefee  Valley  carried 
abundant  water,  while  wells  upon  this  divide  yielded  very 
little,  and  for  practical  purposes  none  at  all.  This  in  turn 
was  disputed  by  plaintiffs,  who  showed  that  they  had  sunk 
wells  along  the  pretended  divide,  and  these  wells  went  into 
water-bearing  gravels.  Defendant  again  answered  this  by 
saying  that,  conceding  this  to  be  so,  the  wells  merely  tapped 
the  gravels,  that  the  quantity  of  water  which  the  wells 
would  produce  was  not  established  by  this,  and  still  less  that 
it  did  not  establish  a  water  communication  between  the  two 
valleys;  that  the  nonexistence  of  this  water  communication 
was  demonstrated  by  the  fact  that  the  water  level  in  the 
wells  of  Menefee  Valley  was  about  six  and  a  half  feet  higher 
than  the  water  level  of  the  wells  in  Ferris  Valley  before 
any  pumping  had  taken  place;  and  finally,  that  it  was  un- 
tenable to  argue  that  Salt  creek,  into  which  Menefee  Val- 
ley drained,  with  a  grade  of  forty-eight  feet  and  at  a  dis- 
tance of  three  miles,  would  not  lower  the  water  level  in  the 
Menefee  wells,  which  remained  standing  forty-eight  feet 
above,  while  lowering  the  water  level  in  Ferris  Valley  ten 
feet  at  a  distance  of  five  or  six  miles  would  cause  the  water 
level  in  the  Menefee  tract  to  lower  ten  feet.  This  naked 
statement  of  the  conflicting  evidence  has  been  given  to  illus- 
trate the  technical  nature  of  the  testimony.  When  it  is  con- 
sidered what  astute  arguments  may  and  have  been  raised 
upon  either  side  in  the  analysis  of  it,  it  demonstrates  the 
impossibility  of  attempting  to  discuss  these  arguments  in 
all  their  varied  phases.  As  we  have  said,  it  must  suffice 
to  say  that  the  findings  of  the  court  are  well  sustained. 
Those  findings  were,  first,  as  has  been  said,  that  there  was 
no  subterranean  connection  between  the  waters  of  Ferris 
and  Menefee  valleys.  This  finding  disposes  of  the  alleged 


NEWPORT  i-.  TE.MESCAL  WATER  Co.  277 

injury  to  plaintiff  Newport's  land  in  Menefee  Valley.  The 
court  in  turn  found  the  existence  of  the  layer  of  hard-pan 
under  Ferris  Valley,  the  alkaline  nature  of  the  soil,  and 
the  natural  tendency  of  the  surface  irrigation  to  draw  this 
alkali  to  the  top  of  the  ground  and  thus  destroy  vegetation. 
Specifically  it  found:  "That  about  one-fourth  of  the  lands 
of  the  plaintiff  Newport  in  Ferris  Valley,  nine-tenths  of 
the  land  of  the  plaintiff  Hoffman,  and  about  one-third  of 
the  land  of  the  plaintiff  Pierce,  are  so  impregnated  with 
alkali,  or  mountainous,  as  to  be  rendered  thereby  practically 
unfit  for  agricultural  purposes,  and  the  remainder  of  the 
lands  of  said  plaintiffs  in  Ferris  Valley  are  adapted  to 
growing  grain  in  seasons  of  abundant  and  seasonable  rain, 
but  during  average  years  such  land  cannot  be  profitably 
farmed,  and  on  account  of  hard-pan,  subsoil  and  climatic  con- 
ditions said  lands  are  of  little  value  for  agricultural  pur- 
poses, and  when  irrigated,  do  not  produce  profitable  crops 
with  reasonable  regularity  and  abundance."  This  finding 
is  attacked  as  being  unsupported  by  the  evidence.  It  is 
further  said  that  it  is  too  indefinite  in  its  declaration  that 
the  lands  have  "little  value  for  agricultural  purposes,"  and 
that  when  irrigated  do  not  produce  profitable  crops  with 
"reasonable  regularity  and  abundance."  The  evidence 
showed  that  of  all  the  lands  in  Ferris  Valley  owned  by  plain- 
tiffs, which  lands  aggregate  some  five  thousand  five  hundred 
and  ninety  acres,  and  which  lands  for  the  most  part  have 
been  owned  for  twenty,  fifteen,  or  ten  years,  less  than  fifty- 
eight  acres  were  being  irrigated  by  these  plaintiffs.  The 
plaintiff  Elisha  H.  Pierce  so  irrigated  "thirty-five  acres, 
more  or  less,"  of  alfalfa  and  one  acre  of  trees  and  vines 
and  vegetables  which  could  not  be  grown  without  artificial 
irrigation.  The  plaintiff  William  Hoffman,  in  1902,  irri- 
gated less  than  one-eighth  of  an  acre  upon  which  were  grow- 
ing vegetables  and  fruit  trees.  The  plaintiff  Waters  for 
more  than  five  years  had  been  irrigating  tbout  two  acres 
planted  to  trees,  vines,  and  shrubbery.  Plaintiffs  Faggi, 
who  purchased  their  land  after  the  defendant's  pumping 
plant  was  in  operation,  irrigated  one-eighth  of  an  acre  of 
alfalfa  and  "twenty  acres  more  or  less"  of  grapevines; 
while  plaintiff  Newport  never  used  any  of  the  water  in  Per- 


278  WATER  RIGHTS  AND  IRRIGATION  LAW. 

ris  Valley  at  all.  We  do  not  set  forth  the  small  quantity 
of  the  land  so  irrigated  out  of  the  tract  of  forty  or  fifty 
square  miles  with  any  idea  that  because  the  use  was  little 
and  the  value  small  the  defendants  and  the  inhabitants  of 
Corona  which  it  supplied  should  in  any  way  receive  any 
preference,  or  should  for  such  reason  be  thought  to  have 
any  superior  right.  Such  an  argument  has  no  standing  in 
a  court  of  law,  and  is  distinctly  repudiated.  But  the  fact 
does  serve  to  support  the  finding  of  the  court  that  the  land 
is  arid  and  unprofitable.  For  it  is  not  to  be  supposed  that, 
with  an  abundance  of  water  under  the  soil,  if  the  soil  itself 
was  fit  for  cultivation,  those  waters  would  not  long  since 
have  been  used  to  transform  the  desert  of  Ferris  Valley  into 
a  fruitful  garden. 

The  court  further  found  that  in  the  three  years  during 
which  the  defendant  had  pumped  water  from  the  valley, 
the  plane  of  saturation  had  lowered  some  ten  feet.  But  it 
is  distinctly  declared  against  the  post  hoc  propter  hoc  argu- 
ment that  this  lowering  was  caused  by  the  pumping,  and 
found  that  for  several  years  prior  to  1901,  when  the  defend- 
ant commenced  pumping,  the  long  period  of  drought  that 
had  existed  for  the  previous  ten  years,  with  the  pumping 
of  others  than  the  defendant,  had  resulted  in  lowering  the 
plane  of  saturation;  that  defendant's  pumping  has  only  con- 
tributed, with  these  other  causes,  to  the  lowering,  and  that 
there  was  no  reason  to  believe  that  its  continued  pumping 
would  in  time  exhaust  the  saturation  of  the  water,  but  "with 
normal  rainfalls  and  such  as  has  been  usual  in  the  past 
forty  years  in  Ferris  Valley  and  surrounding  country,  said 
water  plane  will  return  to  its  former  level  such  as  it  was 
before  any  water  was  pumped  therefrom,  and  will  continue 
to  furnish  sufficient  water  for  the  reasonable  use  of  plain  tiffs 
and  defendant  without  being  greatly  or  permanently  low- 
ered." Since  the  time  when  defendant  commenced  to  pump 
in  1901,  the  finding  is  that  the  water  plane  has  been  tempo- 
rarily reduced  an  average  of  about  ten  feet,  "part  of  which 
reduction  has  been  caused  by  defendant,  the  remainder  by 
plaintiffs,  by  third  parties  and  by  natural  causes." 

These  findings  so  completely  dispose  of  the  controversy 
upon  the  merits  that  little  is  left  to  be  said.  It  becomes 


NEWPORT  v.  TEMESCAL,  WATER  Co.  279 

wholly  unnecessary  to  consider  the  court's  finding  of  laches. 
Important  as  the  consideration  of  this  question  must  prove 
to  be  where  an  absolute  injunction  is  sought  against  work 
of  public  or  quasi-public  character,  such  discussion  must  be 
postponed  until  the  time  when  it  necessarily  arises.  It  is 
to  be  observed,  however,  in  this  case  that  the  plaintiffs  do 
not  ask  for  damages  and  an  ancillary  injunction  until  such 
damages  are  paid,  but  ask  for  an  injunction  absolute,  with- 
out seeking  monetary  compensation.  But  on  the  question 
of  monetary  loss  the  showing  is  that  the  additional  cost  of 
pumping  caused  by  the  lowering  of  the  water  plane  ten  feet 
would  be,  for  alfalfa,  the  crop  requiring  the  most  water,  not 
more  than  one  dollar  per  acre.  So  that  $58  per  year  would 
fairly  represent  the  monetary  loss  of  these  plaintiffs  for 
all  the  land  which  they  irrigated,  even  if  the  lowering  of 
the  plane  were  wholly  attributable  to  defendant.  But,  as 
has  been  said,  the  finding  of  the  court  establishes  that  the 
lowering  was  due  to  the  use  of  water  by  plaintiffs  them- 
selves and  by  others,  as  well  as  to  the  natural  cause  of 
drought,  quite  as  much  as  to  the  operations  of  defendant. 

And,  finally,  upon  this  proposition  it  may  be  said  that 
where  the  interests  of  the  public  are  involved  and  the  court 
can  arrive  in  terms  of  money  at  the  loss  which  plaintiff  has 
sustained,  an  absolute  injunction  should  not  be  granted,  but 
an  injunction  conditional  merely  upon  the  failure  of  the 
defendant  to  make  good  the  damage  which  results  from  its 
work.  Such  an  action,  if  successful,  should  be  regarded  in 
its  nature  as  the  reverse  of  an  action  in  condemnation.  The 
defendant  in  effect  would  be  held  to  be  damaging  private 
property  without  just  compensation  first  made  to  the  owner, 
and  failing  to  make  such  compensation,  should  be  enjoined 
from  further  damage.  For,  as  was  said  by  this  court  in 
Montecito  Valley  v.  Santa  Barbara,  144  Cal.  578,  77  Pac. 
1113,  in  a  case  similar  to  this,  "a  prohibitory  injunction 
should  only  be  granted  if  any  and  all  other  forms  of  relief 
should  be  found  inadequate."  In  this  case,  however,  the 
plaintiffs  sought  an  absolute  injunction.  This  they  conceived 
to  be  their  right  under  Katz  v.  Walkinshaw,  141  Cal.  116, 
99  Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  766,  64  L.  R.  A. 
236,  which  had  been  decided  but  two  months  before  the  com- 


280  WATER  RIGHTS  AND  IRRIGATION  LAW. 

meneement  of  their  action.  The  decision  of  Katz  v.  Walkin- 
shaw  is  adhered  to,  but  as  plaintiffs  on  the  facts  failed  to 
establish  any  ground  for  relief  under  the  principles  there 
laid  down,  no  amplification  of  those  principles  becomes  nec- 
essary. .  .  . 

For  the  foregoing  reasons  the  judgment  and  order  ap- 
pealed from  are  affirmed. 


Effect  of  Partition — Diversion  of  Underflow — Adjustment 
of  Rights  in  Surplus. 

VERDUGO  CANYON  WATER  COMPANY  et  al.,  Appel- 
lants, v.  TEODORO  VERDUGO  and  C.  E.  THOM,  Re- 
spondents, and  E.  M.  ROSS,  Appellant. 
(152  Cal.  655,  93  Pac.  1021.) 

SHAW,  J. — The  plaintiffs  herein  appeal  from  the  judg- 
ment and  from  an  order  denying  their  motion  for  a  new  trial. 
The  defendant,  E.  M.  Ross,  appeals  from  certain  parts  of 
the  judgment.  All  the  appeals  are  presented  upon  the  same 
record. 

The  action  is  by  the  Verdugo  Canyon  Water  Company  and 
some  three  hundred  other  persons,  who  are  its  stockholders, 
to  determine  and  quiet  title  to  certain  water  rights  claimed 
by  them  in  a  stream  of  water  flowing  in  the  Verdugo  canyon, 
and  to  enjoin  the  defendants  from  taking  the  water  alleged 
to  belong  to  the  plaintiffs. 

It  is  alleged  that  the  plaintiffs,  other  than  the  corporation, 
are  the  owners  of  lands  bordering  on  the  stream ;  that,  as  such 
land  owners,  they  have  the  right  to  take  three-fourths  of  its 
waters,  flowing  above  and  below  the  surface  of  the  ground, 
for  use  on  their  lands  in  proportion  to  the  area  of  the  re- 
spective holdings ;  that  the  corporation  was  organized  for  the 
purpose  of  diverting  said  waters  from  said  stream  and  dis- 
tributing them  to  the  plaintiffs  and  other  persons  entitled 
thereto;  that  it  has  constructed  wrorks,  pipes  and  ditches  for 
that  purpose,  and  is  now  engaged  in  said  diversion  and  dis- 
tribution ;  and  that  the  defendants  claim  adversely  the  waters 


VERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  281 

to  which  the  plaintiffs  are  entitled,  and,  without  right,  are 
taking  and  using  said  waters,  to  the  plaintiffs'  injury. 

The  lands  comprising  the  La  Canada  Ranch  and  the  San 
Rafael  Ranch  in  Los  Angeles  county  were,  prior  to  1871,  held 
in  common  ownership  by  a  number  of  persons.  The  two 
ranches  adjoined,  La  Canada  lying  north  of  San  Rafael.  In 
that  year,  in  an  action  between  them  for  that  purpose,  a  par- 
tition of  the  two  ranches  was  made  by  judicial  decree.  Ver- 
dugo  Canyon  begins  near  the  base  of  Sister  Elsie  Mountain  in 
La  Canada  Ranch,  and  extends  from  thence  southerly  across 
the  line  between  the  two  ranches  and  for  several  miles  into 
the  San  Rafael  Ranch,  where,  after  passing  through  a  rather 
narrow  gorge,  it  opens  or  expands  into  a  wide  plain  forming 
part  of  what  is  usually  known  as  the  San  Fernando  Valley. 
The  floor  of  the  canyon  is  comparatively  level  and  varies  in 
width  from  about  seven  hundred  feet  to  something  over 
eighteen  hundred  feet,  with  high  hills  or  mountains  on  each 
side.  In  these  mountains  are  a  number  of  side  canyons  in 
which  small  rills  flow,  the  water  sinking  in  the  ground,  either 
before  or  immediately  after  reaching  the  floor  of  the  canyon. 
During  times  of  heavy  rain,  and  for  a  few  days  afterward,  a 
stream  of  water  flows  down  the  canyon,  through  all  the  lands 
in  controversy  and  into  the  Los  Angeles  river,  some  distance 
below.  This  is  of  infrequent  occurrence,  and  as  it  has  no 
particular  bearing  upon  the  questions  presented,  no  further 
consideration  need  be  given  to  it. 

At  the  time  the  partition  decree  was  made,  three  streams 
arose  in  the  canyon,  within  the  San  Rafael  Ranch,  and  flowed 
for  some  distance  separately,  and  then  united  and  flowed 
for  some  distance  on  the  surface  dowrn  the  canyon,  finally 
sinking  in  the  sand  and  gravel.  These  streams  oozed  out  of 
the  loose  material  composing  the  bed  of  the  canyon  at  three 
places  nearly  of  the  same  level  or  altitude,  almost  on  the  same 
line  extending  laterally  across  the  canyon,  and  near  the  north- 
erly line  of  the  canyon  tract  hereinafter  mentioned.  One 
arose  near  the  east  side  and  somewhat  farther  up  the  canyon 
than  the  other  two.  It  is  called  the  "east-side  stream."  The 
other  two  arose  nearer  the  western  side,  and  united  in  a  single 
stream,  before  joining  with  the  east-side  stream.  The  stream 
composed  of  these  two  is  called  the  "west-side  stream." 


282  WATER  RIGHTS  AND  IRRIGATION  LAW. 

In  partitioning  the  ranches  the  waters  of  these  streams  were 
apportioned  among  and  set  apart  to  certain  of  the  lands  as- 
signed in  severalty.  A  tract  of  two  thousand  six  hundred 
and  twenty-nine  and  one  one-hundredth  acres,  much  of  it 
unfit  for  irrigation,  was  set  off  to  the  defendant  Teodoro  Ver- 
dugo.  It  embraces  the  entire  canyon  from  the  narrows  for 
several  miles  toward  the  north,  and  includes  the  places 
whereon  the  aforesaid  streams  arose  to  the  surface.  It  will 
here  be  designated  as  the  "Canyon  tract."  The  east-side 
stream,  so  far  as  required,  was  set  apart  to  the  Canyon  tract 
for  irrigation  and  other  uses  thereon.1  The  combined  west- 
side  stream  and  any  surplus  of  the  east-side  stream  remaining 
after  the  Canyon  tract  was  supplied  therefrom  were  set  off 
to  a  large  body  of  land  situated  on  the  plain  below  the  nar- 
rows, for  irrigation  and  other  uses  thereon.  These  lower 
lands  covered  an  area  of  about  three  thousand  three  hundred 
and  thirty-three  acres,  and  were  generally  fit  for  irrigation. 
They  were  divided  and  set  off  in  severalty  in  tracts  of  various 
areas  to  twenty-one  different  owners.  For  convenience  of 
designation  the  west-side  stream  was  divided  into  ten  thou- 
sand parts.  It  was  apportioned  to  the  land  at  the  ratio  of 
three  ten-thousandths  of  the  water  to  each  acre  of  the  land. 
A  large  part  of  this  three  thousand  three  hundred  and  thirty- 
three  acres  was  afterward  subdivided  and  sold  in  smaller 
tracts,  each  having  its  proportionate  share  of  the  waters  orig- 
inally assigned.  The  plaintiffs  are  the  owners  of  about  three- 
fourths  of  the  land  to  which  this  water  was  assigned,  and 
the  defendants  C.  E.  Thorn  and  E.  M.  Ross,  respectively, 
each  own  about  one-eighth  thereof.  The  land  of  the  plain- 
tiffs, collectively,  is  entitled  to  three-fourths  of  this  water  and 
that  of  Thorn  and  Ross,  respectively,  to  one-eighth  thereof. 
The  Verdugo  Canyon  Water  Company  diverts  this  water  for 
all  the  interested  parties,  including  Thorn  and  Ross,  by  means 
of  dams  and  diverting  works,  to  the  expense  of  which  Thorn 
and  Ross  contributed  one-eighth  each.  Their  shares  of  the 
water  are  delivered  to  their  respective  pipes  near  the  divert- 
ing works.  The  defendant  E.  M.  Ross  has  also  become  the  ^ 
owner  of  several  hundred  acres  of  land  of  the-  Canyon  tract 
and  has  an  orchard  of  about  one  hundred  acres  thereon,  upon 
which  he  uses  water  from  the  east-side  stream  for  irrigation. 


YERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  283 

In  1871,  and  for  years  thereafter,  there  appears  to  have 
been  sufficient  water  in  the  streams  for  all  the  uses  to  which 
it  was  then  applied  by  the  persons  entitled  thereto.  As 
years  passed,  the  area  of  land  set  out  to  orchards,  vineyards, 
and  other  fruits  by  the  plaintiffs  and  defendants  was  very 
much  increased,  and  the  orchards  of  citrus  fruits  also  required 
more  and  more  water  as  they  grew -older,  so  that  about  the 
year  1891  the  water  began  to  be  insufficient.  In  the  year 
1893  a  series  of  dry  years  began,  and  they  continued  until 
1902,  when  the  present  action  was  begun.  From  the  in- 
creased demand  and  the  decreased  supply  the  result  has  been 
that  during  and  after  1893  the  water  naturally  flowing  on 
the  surface  was  not  enough  to  keep  alive  and  properly  nourish 
the  trees  and  plants  on  the  land  entitled  to  share  in  it.  From 
time  to  time  the  parties,  or  some  of  them,  increased  their 
individual  supply  of  water  by  sinking  wells  deep  in  the  strata 
of  sand  and  gravel  underlying  the  bed  of  the  canyon  and  the 
plain  below,  and  pumping  water  therefrom.  For  a  like  pur- 
pose,  in  1894,  the  Verdugo  Canyon  Water  Company  and  the 
defendants  C.  E.  Thorn  and  E.  M.  Ross  jointly  purchased  about 
eight  acres  of  land,  part  of  the  Canyon  tract,  situated  at  the 
head  of  the  narrows,  and  extending  across  the  canyon  from  the 
west  wall  toward,  but  not  quite  reaching,  the  east  wall  thereof. 
Upon  this  tract,  at  joint  expense,  in  the  proportion  of  three- 
fourths  to  the  company  and  one-eighth  each  to  Thorn  and 
Ross,  they  have  constructed  what  is  called  a  submerged  dam, 
part  of  its  length  consisting  of  a  cement  wrall  and  part  of 
wooden  cribs,  by  which  the  water  flowing  underground  in  the 
sand  and  gravel  of  the  canyon  is  collected  and  diverted,  and 
this  water  has  ever  since  then  been  distributed  to  the  re- 
spective parties  along  with  the  surface  flow  of  the  west-side 
stream,  and  in  the  same  proportion.  This  dam,  so  far  as  it 
has  been  constructed,  is  about  five  hundred  feet  long,  includ- 
ing the  cribs.  Further  construction  thereof  ceased  in  1896. 
For  many  years  past  all  the  waters  of  the  east-side  stream 
have  been  used  on  the  Canyon  tract,  and  there  has  been  no 
surplus  therefrom  to  add  to  the  waters  of  the  west-side 
stream. 

In  1898  E.  M.  Ross  sunk  a  well  in  the  canyon  at  a  point 
about  one  thousand  feet  above  the  submerged  dam,  and  near 


284  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  east  side  of  the  canyon,  in  lands  constituting  a  part  of  the 
canyon  tract.  The  well  was  completed  in  March,  1899,  and 
in  May,  1899,  he  began  pumping,  and  has  ever  since  then, 
during  the  irrigating  seasons,  pumped  therefrom  a  stream  of 
water  averaging  a  flow  of  eighteen  miner's  inches  flowing 
under  four-inch  pressure.  He  has  used  this  water  on  land 
in  the  Canyon  tract,  and  also  on  other  lands,  and  he  claims 
the  absolute  right  to  use  it  on  any  other  land,  as  he  pleases, 
without  regard  to  the  effect  on  the  amount  of  water  collected 
by  the  dam,  or  flowing  in  the  west-side  stream.  In  1897, 
Teodoro  Verdugo  sunk  a  well  in  the  canyon  and  placed  a 
pump  therein  some  two  miles  above  the  dam  and  near  the 
point  where  the  streams  formerly  rose  to  the  surface,  which 
he  began  to  pump  in  the  spring  of  1898,  and  from  which  he 
has  ever  since,  during  the  irrigating  seasons,  pumped  a  stream 
of  about  thirty-five  miner's  inches  of  water,  which  he  has 
used  to  irrigate  lands  in  the  Canyon  tract,  claiming  the  right 
to  do  so.  The  defendant  C.  E.  Thorn  also  has  three  wells 
near,  but  above,  the  Verdugo  well,  from  the  easterly  one  of 
which  he  claims  the  right  to  pump  water  for  irrigation  of 
his  land  below  the  dam,  or  of  any  other  land,  but  no  water 
has  been  pumped  therefrom.  Thorn  and  Ross  have  each  put 
down  wells  in  the  canyon,  at  a  point  about  one  thousand  five 
hundred  feet  below  the  dam,  from  which  they  each  pump 
water  to  irrigate  land  of  the  San  Rafael  Ranch  below  the 
dam  and  entitled  to  water  from  the  west-side  stream  under 
the  decree,  and  each  claims  the  right  to  continue  to  do  so. 
These  several  diversions  of  underground  water  by  the  defend- 
ants for  their  exclusive  use,  and  these  claims  of  right  to  do 
so,  occasioned  this  suit. 

1.  The  partition  decree  did  not  change  the  character  of 
the  rights  of  the  respective  parties  to  the  waters  of  the 
canyon.  It  created  no  new  rights  or  estate  therein,  but 
merely  divided  and  apportioned  the  pre-existing  rights  and 
estates.  Prior  thereto  the  lands  were  in  one  common  owner- 
ship, and  the  part  of  the  San  Rafael  Ranch  here  involved 
was  all  riparian  to  that  stream.  Its  waters  were  therefore 
not  merely  appurtenant  thereto,  as  a  right  acquired  by  pre- 
scription, or  appropriation,  would  be,  but  were  a  part  of  the 
land  itself,  as  parcel  thereof.  This  was  the  case  with  respect 


VERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  285 

to  each  of  the  three  surface  streams  then  flowing,  and  also 
with  respect  to  all  the  underground  flow  which  constituted 
a  part  of  said  streams.  In  making  the  partition  of  these 
waters,  the  right  to  the  use  of  the  surface  streams,  which 
previously  attached  to  the  entire  ranch,  was  completely  sev- 
ered from  the  other  parts  thereof  and  transferred  to  the  lands 
to  which  water  was  assigned.  The  right  thus  assigned  to  each 
tract  by  the  partition  was  a  riparian  right,  and  it  continues 
to  possess  that  character,  with  all  its  attributes,  since  the 
partition  as  fully  as  before. 

"With  respect  to  the  two  surface  streams,  known  as  the  east-' 
side  stream  and  the  west-side  stream,  respectively,  the  parti- 
tion effected  a  complete  separation  of  the  waters,  the  east- 
side  stream  being  given,  so  far  as  necessary,  and  for  many 
years  past  this  has  meant  all  of  it,  to  the  Canyon  tract  ex- 
clusively, and  the  west-side  stream  exclusively  to  the  lands 
below  the  mouth  of  the  canyon.  The  water  of  this  west-side 
stream  was  not  actually  separated  among  the  owners  of  the 
several  tracts.  It  was  merely  apportioned  between  them, 
giving  to  each  in  common  a  certain  number  of  undivided 
shares  of  the  whole. 

It  is  obvious  that  the  continued  presence  in  the  soil,  sand, 
and  gravel,  composing  the  bed  of  the  canyon,  of  a  sufficient 
quantity  of  water  to  supply  and  support  these  surface  streams 
in  their  natural  state,  is  essential  to  their  existence  and  pres- 
ervation, and  that  the  parties  have  as  clear  a  right  to  have 
this  quantity  remain  underground  for  that  purpose  as  they 
have  to  the  stream  upon  the  surface.  Neither  party  should 
be  permitted  to  decrease  this  necessary  quantity  of  under- 
ground water  to  the  depletion  of  the  surface  stream  and  the 
injury  of  those  to  whom  it  has  been  assigned.  This  much 
is  clear  from  the  previous  decisions  of  this  court.  (City  of 
Los  Angeles  v.  Pomeroy,  124  Cal.  621,  57  Pac.  585 ;  McClin- 
tock  v.  Hudson,  141  Cal.  280,  74  Pac.  849;  Colien  v.  La 
Canada  Co.,  142  Cal.  439,  76  Pac.  47.)  And  it  is  conceded 
by  all  the  parties,  except  the  defendant  Verdugo. 

The  partition  did  not  specifically  deal  with  or  dispose  of  : 
the  underground  waters.     The  only  right  concerning  them 
which  is  affected  by  it  at  all  was  the  right  to  have  them 
remain  undisturbed  for  the  preservation  of  the  surface  streams 


286  WATER  RIGHTS  AND  IRRIGATION  LAW. 

undiminished,  and  this  is  a  mere  incident  arising  from  the 
necessity  of  keeping  the  disposition  of  the  surface  flow  effect- 
ual. There  may  possibly  be  a  quantity  of  this  underground 
water  which  could  be  taken  without  affecting  the  surface 
streams,  even  if  taken  above  the  point  where  the  surface 
water  is  diverted  into  flumes  or  ditches.  The  defendants  claim 
that  there  is  a  large  amount  thus  available  for  use.  All  of 
the  underflow,  whether  necessary  to  preserve  the  surface  flow 
above  or  not,  becomes  available  for  such  taking  as  soon  as  it 
passes  below  such  points  of  diversion.  The  right  to  make  use 
of  all  such  surplus  still  belongs  to  the  lands  riparian  thereto 
in  the  same  manner  as  before  the  partition.  The  partition  I 
cut  off  from  this  right  all  lands  of  the  ranch  set  off  to  the 
different  parties  in  severalty,  except  those  tracts  which  ex- 
tended to  some  portion  of  the  underground  flow,  but  otherwise 
the  right  to  the  surplus  was  not  affected  by  the  decree.  The 
underground  water  thus  undisposed  of  is  not  to  be  distin- 
guished, so  far  as  legal  rights  thereto  are  concerned,  from  a 
similar  surplus  remaining  in  a  surface  stream  after  a  parti- 
tion had  been  made  allotting  certain  parts  thereof,  less  than 
the  whole,  to  the  use  of  the  riparian  owners.  For  illustra-  i 
tion,  suppose  that  in  a  partition  of  lands  riparian  to  a  sur- 
face stream  of  one  thousand  miner's  inches,  the  amount  of 
five  hundred  inches  is  allotted  to  the  several  tracts  in  fixed 
proportions.  The  right  to  the  use  of  the  five  hundred  inches 
not  so  apportioned,  would,  in  such  a  case,  as  between  those 
parties,  still  remain  attached  to  the  riparian  lands  as  a  riparian 
right,  unaffected  by  the  provisions  of  the  decree  fixing  the 
proportions  in  which  the  parties  are  entitled  to  use  the  water 
expressly  set  apart  to  them.  So  in  the  present  case  the  ! 
underground  water  was  not  set  apart,  and  the  available  sur- 
plus thereof  belongs,  as  before,  to  the  riparian  lands  to  be 
used  by  the  owners  in  accordance  with  the  law  of  riparian 
rights.  The  relative  rights  of  the  parties  in  this  surplus 
are  to  be  determined  by  that  law,  without  aid  from  the  par- 
tition decree.  The  fact  that  the  stream  above  at  some  point 
in  its  course  is  divided  into  distinct  channels  does  not  affect 
the  right  of  the  lands  below  to  share  in  the  use  of  both  or 
all  of  them.  All  of  the  lands  concerned  in  this  action,  or 
practically  all  of  them,  are,  it  appears,  alike  riparian  to  the 


VERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  287 

whole  of  the  stream  constituted  by  this  underflow.  For  the 
determination  of  present  rights  to  its  use,  it  must  be  treated 
as  constituting  but  one  stream.  Each  parcel  of  land,  there- 
fore,  is  entitled  to  its  proper  share  of  the  entire  underflow, 
without  regard  to  the  question  whether  it  comes  from  the 
underflow  supporting  the  particular  surface  stream  set  apart 
for  it  by  the  partition,  or  from  some  other  part  of  the  under- 
flow, always,  of  course,  saving  the  proposition  that  no  owner 
may,  by  extracting  the  underflow,  diminish  either  surface 
stream  to  the  injury  of  any  party  entitled  to  it. 

It  is  to  be  noted  that  the  plaintiffs  are  not  entitled  by  the 
decree  to  three-fourths  of  all  the  surface  flow  of  the  canyon, 
but  only  to  three-fourths  of  the  west-side  stream  and  of  the 
surplus  of  the  east-side  stream,  when  there  is  any.  The  court 
below  appears  to  have  adopted  the  view  that  the  separation 
of  the  right  to  the  surface  streams  by  the  partition  accom- 
plished a  like  separation  of  the  right  to  all  of  the  underground 
waters,  both  of  the  parts  thereof  necessary  to  sustain  the  sur- 
face flow  and  of  the  surplus.  It  made  a  finding  attempting 
to  designate  on  the  surface  of  the  ground  a  boundary  line 
separating  these  two  supposed  underground  streams,  and 
declaring  that  the  waters  thereof,  respectively,  and  the  right 
to  pump  and  use  the  same,  belonged  to  the  parties  entitled 
under  the  partition  to  the  respective  surface  streams.  This 
declaration  of  right  was  not  expressly  stated  in  the  decree, 
but  some  of  the  provisions  thereof,  as  will  presently  appear, 
are  obviously  based  upon  it.  In  this  theory  the  court  was 
in  error,  and  for  this  and  other  errors,  to  be  presently  dis- 
cussed, the  judgment  and  order  must  be  reversed.  Other 
points  are  presented  in  the  record  which  may  again  be  in- 
volved upon  a  new  trial.  We  now  proceed  to  the  considera- 
tion of  these  propositions. 

2.  The  finding  is  that  the  underground  flow  in  the  canyon 
is  in  two  separate  and  distinct  streams,  one  giving  rise  to 
the  east-side  surface  stream  and  the  other  to  the  two  streams 
composing  the  west-side  surface  stream.  The  boundary  line 
between  them  was  declared  to  be  the  easterly  line  of  a  certain 
"inclosed  field"  mentioned  in  the  partition  decree.  The  evi- 
dence shows  that  the  general  course  of  this  line  is  north  and 
south,  and  it  is  located  about  midway  of  the  bed  of  the 


288  WATER  RIGHTS  AND  IRRIGATION  LAW. 

canyon,  and  that  it  has  many  sharp  angles,  so  acute,  indeed, 
that  it  would  be  extremely  remarkable,  if  not  impossible,  that 
there  could  be  any  natural  impervious  barrier  having  such  a 
course.  There  is  no  evidence  to  indicate  that  there  is  any 
difference  in  the  material  of  the  bed  of  the  canyon  corre- 
sponding to  this  line,  or  anything  therein  that  could  thus 
divide  or  separate  the  underflow.  The  finding  as  to  this  line 
of  separation  was  purely  arbitrary  and  entirely  without  sup- 
port. 

The  fact  that  the  streams  arose  in  different  places  and  the 
circumstances  that,  as  the  dry  years  continued  and  the  places 
where  they  arose  receded  farther  and  farther  down  the  can- 
yon, the  line  of  these  places  followed  the  previous  course  of 
the  respective  streams,  constitute  some  evidence  that  the 
density  or  permeability  of  *he  material  of  the  parts  of  the 
canyon-bed  corresponding  to  the  previous  courses  of  the 
streams  is  different  from  the  adjacent  parts  thereof,  and  that 
the  space  between  them  is  less  porous  than  the  lines  of  these 
streams.  (There  is  no  finding,  however,  and  no  evidence,  that  V 
the  separation  is  so  complete  that  the  pumping  of  water  from 
one  of  them  will  not  affect  the  flow,  above  or  below  the  sur- 
face, in  the  other,  and  this  is  the  vital  point  in  the  case^,  It 
is  unlikely  that  it  is  so,  since  wherever  there  have  been  ex- 
plorations in  the  canyon  beneath  the  surface,  the  material 
has  been  found  to  be  practically  homogeneous  and  equally 
permeable  throughout.  But  as  the  right  to  the  use  of  the 
surplus  underflow  remains  undivided  and  the  riparian  rights 
of  the  lands  below  include  the  right  to  prevent  undue  inter- 
ference with  either  branch  of  the  underflow  above,  supposing 
that  there  are  two  or  more  branches,  and  as  the  Canyon  tract 
extends  to  all  of  them,  the  question  of  the  separation  of  the 
underground  flow  is  of  no  consequence  in  the  present  stage 
of  the  case. 

3.  Driven  by  the  necessity  arising  from  the  increased  acre- 
age irrigated,  and  the  scant  supply  of  water  after  the  year 
1892,  many  of  the  plaintiffs  have  been  compelled  to  obtain 
water  for  their  lands  from  wells  sunk  thereon.  This  water 
lies  in  the  sands  and  gravels  at  a  considerable  depth  beneath 
the  surface,  and,  for  the  most  part,  appears  to  come  from 
the  underground  flow  of  the  canyon  which  goes  under  the 


VERDUGO  CANYON  WAXES  Co.  v.  VERDUOO.  289 

dam  and  spreads  under  the  surface  of  the  plain  below.  Some 
of  it,  of  course,  comes  from  rainfall  below  the  dam,  and 
some,  it  is  claimed,  comes  from  the  Los  Angeles  river,  but 
the  water  from  these  last-named  sources  is  not  material  to 
the  case,  except,  possibly,  as  it  may  affect  the  necessities  of 
the  particular  party  and  thus  assist  in  determining  the  amount 
he  may  be  allowed  to  take  of  the  waters  of  the  canyon  proper. 

The  court  did  not  specifically  find  whether  or  not  the 
amount  of  water  pumped  by  each  party  was  the  proportion 
of  the  underground  flow  to  which  the  particular  party  was 
entitled,  nor  did  it  determine  whether  or  not  any  of  that 
pumped  above  the  dam  constituted  a  part  of  the  water  which, 
as  above  stated,  remains  unpartitioned.  It  finds  that  none  of  \/ 
the  parties  has  ever  taken  or  used  more  water  than  was  rea- 
sonably necessary  for  the  proper  irrigation  of  his  land,  and 
that  none  has  had  enough  for  that  purpose;  but  necessity  is 
not  the  sole  measure  of  right  in  such  cases. 

The  decree  does  not  attempt  to  declare  the  comparative  - 
rights  of  each  party,  nor  to  go  into  that  question  at  all.  It 
does  not  mention  the  rights  of  the  several  plaintiffs  to  pump 
below  the  dam  nor  in  any  manner  fix  the  amounts  they  may 
take  by  that  method.  It  is  directed  entirely  to  the  rights  of 
the  defendants.  It  declares  that  the  defendants  Thorn  and 
Ross  may  each  continue  to  pump  and  use  the  water  from  his 
wells  below  the  dam,  as  heretofore ;  that  E.  M.  Ross  may  use, 
upon  his  one  hundred  acre  orchard  in  the  Canyon  tract, 
enough  water  from  his  upper  well  to  make  up,  when  added 
to  his  part  of  the  surface  flow  of  the  east-side  stream,  a  total 
flow  of  twenty-two  and  one-fourth  miner's  inches,  but  may 
not  use  a  greater  amount  thereof  on  the  Canyon  tract  under 
present  conditions,  and  that  he  may  use  all  the  waters  of 
said  upper  well,  "and  of  said  east^side  stream,  both  surface 
and  subterranean,"  upon  any  of  his  lands  within  the  Canyon 
tract;  that  Verdugo  may,  as  heretofore,  pump  thirty-five 
inches  from  his  well;  that  C.  E.  Thorn  may  pump  from  his 
east  well,  near  the  Verdugo  well,  and  use  the  water  upon  his 
land  in  the  Canyon  tract,  but  not  on  other  land;  and  that 
the  waters,  surface  and  subterranean,  intercepted  and  di- 
verted by  the  dam,  are  to  be  used  upon  the  lands  below  the 
19 


290  WATER  RIGHTS  AND  IRRIGATION  LAW. 

Canyon  tract,  three-fourths  by  the  plaintiffs  and  one-eighth 
each  by  defendants  Thorn  and  Ross. 

These  provisions  of  the  decree  are  manifestly  based  on  the 
theory  that  the  entire  flow  of  what  the  court  calls  the  east- 
side  stream  both  above  and  below  the  surface,  east  of  the 
arbitrary  division  line  established  in  the  findings  between 
the  underflow  of  that  and  the  west-side  stream,  belongs  abso- 
lutely to  the  Canyon  tract  by  virtue  of  the  partition,  if  neces- 
sary for  its  irrigation.  In  view  of  what  has  been  said,  the 
decree  is  erroneous  as  to  the  surplus  of  the  underflow,  if 
any,  in  that  it  does  not  limit  the  right  of  each  to  his  proper 
portion  as  compared  to  the  rights  of  the  other  owners. 

4.  The  well  of  the  defendant  Verdugo  is  not  situated  over  r 
what  the  court  finds  to  be  the  east-side  stream,  but  is  well 
within  the  territory  which  it  finds  contains  the  underground 
waters  of  the  west-side  stream.  With  respect  to  the  effect  of 
the  pumping  of  thirty-five  miner's  inches  from  this  well  upon 
the  west-side  stream  and  upon  the  underflow  intercepted  by 
the  dam,  the  finding  is  that  "the  court  is  unable  to  discover 
from  the  evidence  in  this  case  that  the  flow  of  the  waters  at 
the  said  point  of  diversion  and  at  the  submerged  dam  is 
affected  by  the  pumping  of  said  well."  If  this  was  intended 
as  a  finding  that  the  flow  of  water  is  not  affected  by  the 
pumping  from  the  well,  the  evidence  does  not  support  it.  If 
intended  as  a  declaration  that  a  finding  is  excused  by  the 
want  of  evidence  on  the  subject,  it  is  unwarranted.  From 
other  findings  it  appears  that  this  west-side  stream  has  its 
source  in  the  mountains  above,  is  fed  by  water  from  that 
watershed,  and  flows  underground  in  the  upper  part  of  the 
canyon  down  to  the  places  where  it  appears  on  the  surface; 
that  it  first  appeared  on  the  surface  in  the  said  "inclosed 
field"  at  a  point  less  than  one  thousand  feet  below  the 
Verdugo  well,  and  that  during  the  last  ten  or  twelve  years 
preceding  the  trial,  which  was  in  December,  1903,  its  place  of 
appearance  on  the  surface  had  gradually  dropped  farther  and 
farther  down  the  canyon  a  total  distance  of  over  a  mile  and 
a  half,  and  that  its  flow  had  constantly  decreased  in  quan- 
tity, so  that  it  became  insufficient  for  the  needs  of  those  to 
whom  it  was  allotted.  The  evidence  indicates  that  the  total 
natural  flow  of  the  canyon,  above  and  below  the  surface  is 


VERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  291 

less  than  two  hundred  miner's  inches.  This  well  is  about 
one  hundred  and  sixteen  feet  deep,  the  bottom  being  in  coarse 
gravel  containing  an  abundance  of  water,  and  after  reaching 
a  depth  of  twenty-seven  feet,  it  passes  through  similar  water- 
bearing material  all  the  way  to  the  bottom.  It  would  scarcely 
require  the  evidence  of  experts  to  prove  that  a  well  sunk 
in  the  sand  and  gravel  of  an  underground  stream  of  this 
character,  a  thousand  feet  or  less  above  the  point  where  the 
stream  originally  issued  upon  the  surface,  and  pumping  a 
constant  flow  of  thirty-five  miner's  inches  would,  to  some 
extent,  reduce  the  flow  of  the  surface  stream.  Especially 
would  this  effect  follow  where  the  surface  stream  and  the 
underground  flow  is  as  small  as  in  the  present  case.  Hy- 
draulic engineers  of  admitted  qualifications  did  testify,  how- 
ever, in  effect,  that  the  pumping  of  that  quantity  from  the 
well  would  materially  reduce  the  surface  stream,  and  that, 
taking  the  underground  and  surface  flow  as  a  whole,  its 
amount  would  ultimately  be  reduced  by  an  amount  equal  to 
the  quantity  pumped  from  the  well,  if  none  of  it  were  re- 
turned to  such  stream. .  This,  in  the  absence  of  extraordinary 
circumstances,  not  proven,  and  not  to  be  presumed,  is  self- 
evident.  There  were  other  circumstances  also  tending  to 
prove  that  the  pumping  of  Verdugo's  well  affected  the  flow  of 
water  below.  There  is  no  evidence  at  all  indicating  that  it 
would  not  or  did  not  materially  reduce  the  flow.  It  is  true 
that  when  the  pumping  began  it  did  not  at  once  have  a  per- 
ceptible effect  on  the  surface  stream;  but  this  delay  was  to 
be  expected.  It  also  appears  that  from  1892  to  1903  there 
was  a  scant  rainfall,  and  that  the  flow  of  the  stream  was 
greatly  diminished  by  the  drought.  But  neither  this  natural 
decrease  nor  the  fact  that  the  effect  of  the  pumping  upon  the 
flow  must  necessarily  have  been  gradual  makes  it  any  the 
less  inevitable  that  the  taking  of  the  water  from  the  stream 
by  the  well  above  will  eventually  reduce  the  amount  that 
would  otherwise  flow  in  the  stream  below,  to  the  extent  that 
the  water  so  taken  therefrom  is  not  returned  thereto.  This 
is  the  necessary  effect  of  any  diversion  from  a  stream,  whether 
flowing  on  the  surface  or  beneath,  whether  in  an  unobstructed 
channel,  or  in  the  gravel  and  sand  which  partly  fills  the  rocky 
gorge  of  its  original  course.  From  the  evidence  the  court 


292  WATER  RIGHTS  AND  IRRIGATION  LAW. 

should  have  found  whether  it  did  reduce  the  surface  stream, 
and  if  there  was  a  reduction  it  should  have  been  ascertained, 
as  nearly  as  it  could  from  evidence  before  it,  the  amount  of 
such  decrease.  The  defendant  Verdugo  should  have  been 
enjoined  from  decreasing  the  surface  flow  of  the  west-side 
stream  and  from  taking  more  than  his  share  of  the  surplus 
underflow,  unless  as  Verdugo  claimed,  there  was  an  estoppel*' 
against  the  plaintiffs  which  prevents  them  from  asserting 
their  rights  in  that  respect.  The  court  found  that  there  was 
such  estoppel.  This  proposition  and  also  the  claim  that  plain- 
tiffs are  estopped  as  to  the  upper  well  of  E.  M.  Ross,  and 
that  they  are  barred  by  laches  as  to  both  of  these  defend- 
ants, will  be  presently  considered. 

5.  The  court  finds  that  the  amount  of  water  diverted  by  the 
submerged  dam  is  greatly  diminished,  and  that  this  decrease 
"is  largely,  if  not  wholly,  due  to  the  many  years  of  continu- 
ous drought."  It  further  finds  "that  the  fluctuations  in  the 
quantity  of  water  flowing  at  the  submerged  dam  into  the 
common  works  has  been  considerable  for  several  years  past, 
but  the  court  cannot  determine  from  the  evidence  in  this 
case  that  such  fluctuations  have  been  due  to  any  extent,  or,  if 
any,  to  what  extent,  by  reason  of  the  pumping  of  the  water 
from  the  upper  well  of  Judge  Ross."  Another  finding  states 
that  "it  is  impossible  to  determine"  to  what  extent,  if  at  all, 
the  decrease  aforesaid  has  been  caused  by  the  pumping  of  the 
upper  well  of  E.  M.  Ross.  These  findings  and  those  to  the 
same  effect  concerning  the  Verdugo  well  are  the  only  findings 
in  response  to  the  issue  made  upon  the  allegation  of  the  com- 
plaint that  the  defendants  have  put  down  wells  and  have 
taken  out  water  from  the  stream  that  belongs  to  the  plaintiffs. 

It  may  be  conceded  that  it  would  be  impossible  to-  determine 
accurately  the  exact  amount  of  the  water  pumped  from  this 
well  that  if  not  so  pumped  would  have  reached  the  pipes  at 
the  submerged  dam.  But  it  is  not  necessary,  in  order  to 
establish  the  right  to  an  injunction,  that  the  plaintiff  should 
be  able  to  prove  the  extent  of  his  injury  with  absolute  pre- 
cision. If  the  taking  of  the  water  by  the  defendants  is  a 
wrongful  taking  of  that  which  belongs  to  the  plaintiffs,  and 
is  of  a  substantial  quantity  and  causes  them  substantial  in- 
jury, the  court  is  not  excused  from  making  any  finding  on 


VERDUQO  CANYON  WATER  Co.  v.  VERDUGO.  293 

the  subject  by  the  fact  that  the  evidence  is  indefinite  as  to 
the  exact  quantity  taken,  or  the  exact  amount  of  the  injury. 

The  evidence  was  that  there  had  been  continuous  pumping 
from  this  well  of  a  stream  of  water  varying  from  sixteen  to 
twenty-six  miner's  inches.  The  well  penetrated,  to  the  depth 
of  one  hundred  feet,  into  the  strata  of  water-bearing  sand  and 
gravel  of  which  the  bed  of  the  canyon  is  composed.  It  was 
situated  about  one  thousand  feet  above  the  dam.  That  the 
strata  of  sand  and  gravel  pierced  by  the  well,  and  from 
which  the  water  was  pumped,  extended  from  the  well,  down 
the  canyon,  to  the  dam,  was  fairly  established,  and  there  is 
nothing  in  contradiction.  The  evidence  referred  to,  and 
stated  in  the  discussion  of  the  effect  of  the  pumping  of  the 
Verdugo  well  upon  the  underground  surface  flow,  is  equally 
applicable  here.  It  was  shown  that  all  the  underground  water 
of  the  canyon,  which  did  not  rise  to  the  surface,  flowed  slowly 
down  the  canyon  underground,  and  had  no  outlet  other  than 
the  narrow  gorge  across  which  the  dam  was  constructed. 
The  fact  that  there  were  fluctuations  in  the  quantity  flowing, 
before  as  well  as  after  the  pumping  began,  and  the  fact  that 
dry  seasons  diminished  the  flow  at  the  dam,  do  not  disprove 
the  fact  that  the  taking  out  of  water  above  also  diminished 
it.  From  the  evidence  it  is  practically  certain  that  the  pump- 
ing of  this  well,  as  stated,  would  materially  reduce  the  under- 
flow at  the  dam.  The  court  should  have  made  a  definite  find- 
ing upon  this  issue.  .  .  . 

The  facts  stated  are  not  sufficient  to  create  estoppels  agains 
the  plaintiffs.  It  does  not  appear  that  either  Verdugo  or 
Ross  was  induced  to  put  down  his  well  by  any  act,  word,  or 
tacit  encouragement  of  the  plaintiffs,  or  either  of  them,  or 
relied  upon  their  silence  as  evidence  of  his  own  right,  or  of 
their  consent.  Nor  does  it  appear  that  plaintiffs  intended 
that  either  should  act  in  reliance  upon  their  silence,  or  ex- 
pected that  either  would  do  so.  It  is  not  shown  that  plaintiffs 
were  under  any  duty  toward  either  to  disclose  any  claim  they 
might  have  to  the  water,  nor  that  said  defendants  did  not 
know,  at  least  as  well  as  the  plaintiffs  knew,  that  the  pump- 
ing of  the  respective  wells  would  decrease  the  west-side 
stream,  and  the  underflow  at  the  dam.  The  party  estopped 
must  always  intend,  or  at  least  must  be  so  situated  that  he 


294  WATER  RIGHTS  AND  IRRIGATION  LAW. 

should  be  held  to  have  expected,  that  the  other  party  shall 
act,  and  the  other  party  must,  by  the  words,  conduct  or 
silence  of  the  first  party,  be  induced  or  led  to  do  what  he 
would  not  otherwise  do.  (Carpy  v.  Dowdell,  115  Cal.  677,  47 
Pac.  695;  Swain  v.  Seamans,  9  Wall.  274,  19  L.  ed.  554; 
Dickerson  v.  Colgrove,  100  U.  S.  580,  25  L.  ed.  618.)  The^ 
mere  fact  that  the  defendants  expended  money  in  sinking  the 
wells  and  putting  in  the  pumps  each  upon  his  own  land,  with 
the  knowledge  of  the  plaintiffs  and  without  objection  by 
them,  creates  no  estoppel^ ...  If  the  finding  that  the  Ver- 
dugo  well  was  sunk  and  the  money  expended  with  their 
"acquiescence,"  means  more  than  a  passive  acquiescence  or 
failure  to  object,  if  would  be  contrary  to  the  evidence.  A"^ 
mere  passive  acquiescence  where  one  is  under  no  duty  to 
speak  does  not  raise  an  estoppeO  .  .  . 

It  is  suggested  that,  although  the  facts  found  may  come 
short  of  creating  an  estoppel,  they  are  sufficient  to  show  that 
the  plaintiffs  are  barred  by  their  laches.  It  is  well-established  V 
doctrine  that  the  defense  of  laches  does  not  rest  entirely  upon 
lapse  of  time,  nor  require  any  specific  period  of  delay,  as 
does  the  statute  of  limitations.^  In  order  to  constitute  laches, 
there  must  be  something  more  than  mere  delay  by  the  plain- 
tiff, accompanied  by  an  expenditure  of  money  or  effort  on 
the  part  of  the  defendant.  It  must  also  appear  that  it  will 
be  inequitable  to  enforce  the  claim.  "The  reason  upon  which 
the  rule  is  based  is  not  alone  the  lapse  of  time  during  which 
the  neglect  to  enforce  the  right  has  existed,  but  the  changes 
of  condition  which  may  have  arisen  during  the  period  in 
which  there  has  been  neglect."  (Penn  Mutual  L.  I.  Co.  v. 
Austin,  168  U.  S.  698,  18  Sup.  Ct.  228,  42  L.  ed.  626.)  It 
is  said  that  the  cases  on  the  subject  "proceed  on  the  assump- 
tion that  the  party  to  whom  laches  is  imputed  has  knowledge 
of  his  rights  and  an  ample  opportunity  to  establish  them 
in  the  proper  forum ;  that  by  reason  of  his  delay  the  adverse 
party  has  good  reason  to  believe  that  the  alleged  rights  are 
worthless  or  have  been  abandoned;  and  that,  because  of  the 
change  in  conditions  during  this  period  of  delay,  it  would 
be  an  injustice  to  the  latter  to  permit  the"  claimant  now  to 
assert  his  rights.  (Galliher  v.  Cadwell,  145  U.  S.  372,  12 
Sup.  Ct.  874,  36  L.  ed.  738.)^  "The  acquiescence  which  will 


VERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  295 

bar  a  complainant  from  the  exercise  in  his  favor  of  the  dis- 
cretionary jurisdiction  by  injunction  must  be  such  as  proves 
his  assent  to  the  acts  of  the  defendant,  and  to  the  injuries 
to  himself  which  have  flowed,  or  can  reasonably  be  antici- 
pated to  flow,  from  those  acts."  (Lux  v.  Haggin,  69  Cal.  271, 
10  Pae.  674,  4  Pac.  919.)  The  same  case  quotes  approvingly 
this  passage  from  Rochdale  etc.  Co.  v.  King,  2  Sim.,  N.  S., 
89:  "Where  one  invades  the  right  of  another,  that  other  does 
not  in  general  deprive  himself  of  the  right  of  seeking  redress 
merely  because  he  remains  passive,  unless,  indeed,  he  con- 
tinues inactive  so  long  as  to  bring  the  case  within  the  purview 
of  the  statute  of  limitations."  The  evidence  shows  that  the 
acquiescence  of  the  plaintiffs  in  the  sinking  of  these  wells 
and  the  pumping  thereof  was  nothing  more  than  a  mere  fail- 
ure to  actively  interfere.  The  consent  of  plaintiffs  was  not 
asked;  nor  were  they  informed  by  either  defendant  of  the 
intention  to  sink  the  wells,  expend  the  money,  or  pump  the 
water.  There  was  nothing  in  the  circumstances  to  put  upon 
the  plaintiffs  any  duty  or  obligation  to  inform  either  defend- 
ant that  the  pumping  of  the  water  would  be,  or  was,  a  viola- 
tion of  plaintiffs'  rights.  Verdugo  well  knew,  from  the 
former  action  against  him,  that  plaintiffs  did  object  to  any 
diminution  of,  or  interference  with,  the  west-side  stream. 
The  court  finds  that  the  plaintiffs,  during  the  time  the  Ver- 
dugo well  was  being  pumped,  claimed  that  it  was  depleting 
their  own  supply,  but  it  does  not  find  that  they,  for  a  moment, 
assented  to  the  injury  thus  caused.  The  evidence  shows  that 
there  was  no  such  assent.  While  these  defendants  were  sink- 
ing the  wells,  erecting  the  pumps  and  laying  the  pipes,  the 
plaintiffs  had  no  information  from  them,  or,  so  far  as  ap- 
pears, from  any  other  source,  as  to  the  amount  of  water  they 
proposed  to  pump.  During  that  period  they  were  certainly 
not  required,  by  any  rule  of  law  or  equity,  to  inform  him  that 
he  incurred  the  expense  at  his  peril,  if  the  subsequent  pump- 
ing should  invade  their  rights.  Each  defendant  was  conduct- 
ing his  operations  upon  his  own  land.  The  expense  was  com- 
plete when  the  pump  was  erected  and  the  pipes  laid.  That 
expense  was  not  incurred  in  reliance  upon  any  word  or  act, 
nor  upon  the  silence,  delay  or  tacit  encouragement  of  plain- 
tiffs. Up  to  the  point  of  the  completion  of  the  works  there 


296  WATER  RIGHTS  AND  IRRIGATION  LAW. 

could  be  no  laches.  After  that  completion  there  was  no 
change  of  conditions,  or,  at  all  events,  none  that  would  make 
it  unjust  for  plaintiffs  to  assert  their  rights.  The  subse- 
quent events  consisted  wholly  of  the  continuous  pumping  of 
the  wells,  to  the  depletion  of  plaintiffs'  source  of  supply,  and 
to  the  profit  and  advantage  of  the  defendants,  respectively. 
They  were  not  induced  to  pump  the  water  by  the  delay  of 
plaintiffs  to  prevent  them,  nor  was  either  of  them  thereby 
induced  to  believe  that  plaintiffs  had  no  right  in  the  water 
he  was  pumping,  or  that,  if  they  had  such  right,  they  had 
abandoned  it.  (As  presented  by  the  evidence,  the  case  is>/ 
simply  this:  that  each  of  said  defendants  was  urged  solely 
by  his  own  extreme  necessity,  not  relying  on  the  act,  omission, 
or  word  of  anyone,  and  that,  while  he  doubtless  hoped  that 
plaintiffs  would  not  interfere,  he  proposed  to  continue,  re- 
gardless of  the  effect  upon  their  supply,  until  they  did  pre- 
vent him.)  Each  may  have  believed  that  plaintiffs  had  no 
such  right,  but  such  belief  sprang  from  no  act,  word,  silence, 
or  delay  on  their  part.  The  necessary  elements  are  wholly 
wanting,  and  therefore  the  defense  of  laches  is  not  estab- 
lished. 

7.  It  is  claimed  on  behalf  of  the  defendant  E.  M.  Ross  that 
the  pumping  of  his  upper  well  takes  water  only  from  the 
underflow  of  the  east-side  stream,  and  does  not  affect  the 
water  of  the  west-side  stream,  nor  the  underflow  thereof,  and, 
hence,  that  it  is  within  his  legal  rights.  Under  the  partition 
decree  he  is  entitled  to  the  use  of  the  east-side  stream  upon 
his  land  in  the  Canyon  tract,  but  as  to  the  underflow  there,of, 
his  right  under  that  decree,  as  we  have  heretofore  stated,  does 
not  extend  to  its  use,  but  only  to  have  it  remain  to  preserve 
the  surface  flow.  As  to  the  use  of  the  unpartitioned  surplus 
underflow  for  irrigation,  he  is  entitled  only  to  his  propor- 
tionate share  with  the  other  parties,  including  the  plaintiffs. 

It  is  declared  by  the  judgment  in  the  case  at  bar  that  the 
plaintiffs  and  the  defendants  C.  E.  Thorn  and  E.  M.  Ross 
are  entitled,  as  tenants  in  common,  in  the  proportions  here- 
tofore stated,  to  all  the  waters  of  the  west-side  stream  and 
all  the  waters  intercepted  by  the  submerged  dam,  which,  of 
course,  includes,  in  part  at  least,  the  underflow  of  both  the 
east-side  and  west-side  streams.  Nevertheless,  E.  M.  Ross  is 


VERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  297 

given  the  right  to  pump  his  upper  well  and  to  thereby  decrease 
the  underflow  from  the  east-side  stream  at  the  dam.  It  is 
contended  by  the  plaintiffs  that  he  is  estopped  and  cannot  be 
allowed  to  pump  water  to  the  extent  that  it  will  affect  such 
underflow,  even  if  he  uses  no  more  than  his  reasonable  share. 
This  estoppel,  it  is  claimed,  arises  out  of  certain  transactions 
between  him  and  the  plaintiffs,  which  it  becomes  necessary 
to  state. 

About  the  year  1893,  when  the  water  began  to  run  short, 
the  plaintiffs  and  the  defendants  Thorn  and  Ross,  being 
jointly  interested  in  the  west-side  stream,  began  to  look  about 
for  means  by  which  the  common  supply  could  be  increased. 
Up  to  about  May,  1894,  the  talk  had  been  confined  to  pro-  y 
posals  to  make  a  more  perfect  dam  to  catch  the  surface 
stream.  It  was  believed  by  all  of  them  that  there  was  a  con- 
siderable amount  of  water  flowing  underground  down  the 
canyon  through  the  narrow  gorge,  below  the  places  where 
the  surface  streams  were  then  diverted,  and  that  by  construct- 
ing a  dam  across  this  gorge  to  the  solid  ground  on  each  side, 
and  extending  it  below  the  surface  to  bedrock,  all  of  this 
underflow  could  be  intercepted  and  added  to  their  common 
supply  for  their  lands  below.  On  May  14,  1894,  which  was 
about  the  time  of  the  first  mention  of  the  project  to  construct 
a  submerged  dam,  E.  M.  Ross  wrote  to  the  secretary  of  the 
plaintiff  company,  referring  to  previous  suggestions  of  a  dam 
for  surface  water,  and  saying :  ' '  I  was  told  yesterday  and  the 
day  before  that  your  company  is  now  talking  of  putting  down 
a  submerged  dam  somewhere  in  the  canyon.  That,  of  course, 
is  an  altogether  different  thing,  and  involves  the  develop- 
ment of  water  not  rising  in  the  old  field  of  the  partition  de- 
cree and  not  of  the  surplus  of  the  Teodoro  Verdugo  water. 
If  it  is  desired  to  develop  water  on  my  land,  perhaps  terms 
may  be  agreed  upon;  but  otherwise  not."  The  water  of 
the  "old  field,"  means  the  west-side  stream  and  the  "surplus 
of  the  Teodoro  Verdugo  water,"  the  surplus  of  the  east-side 
stream.  On  May  25,  1894,  the  plaintiffs  wrote  a  letter  to  E. 
M.  Ross,  saying  that  it  was  their  desire  "to  obtain  the  co- 
operation of  yourself  and  Captain  Thorn  in  the  construction 
of  such  works  as  are  deemed  advisable  on  the  land  owned  in 
common  by  the  owners  of  the  waters  flowing  from  Verdugo 


298  [WATER  BIGHTS  AND  IRRIGATION  LAW. 

Canyon,  for  collecting  all  such  waters,  flowing  below  as  well 
as  on  the  surface,  and  conducting  the  same  to  our  common 
use."  This  evidently  referred  to  lands  to  be  thereafter  pur- 
chased in  common,  for,  at  that  time,  there  was  no  land  ' '  owned 
in  common."  It  is  clear  from  this  and  other  evidence,  that 
the  plan  in  contemplation  during  the  subsequent  negotiations 
was  the  plan  above  stated,  or  some  similar  plan  to  accom- 
plish a  similar  result.  Soon  after  this,  negotiations  began 
with  Teodoro  Verdugo,  the  owner  of  the  land  considered  best 
for  a  site  for  the  proposed  dam,  looking  to  the  purchase  of  a 
tract  of  9.39  acres,  for  $4,000,  but  the  price  proved  to  be  too 
high  for  the  means  of  the  company  and  that  purchase  was 
abandoned.  In  all  the  negotiations  and  transactions  concern- 
ing this  submerged  dam  it  was  understood  that  it  was  to  be 
a  common  enterprise,  that  the  property  necessary  therefor 
should  be  held,  the  expense  thereof  contributed,  and  the  bene- 
fits thereof  shared  in  the  same  proportions;  that  is,  in  the 
proportion  of  three-fourths  to  the  plaintiffs  and  one-eighth 
each  to  Thorn  and  Ross.  Shortly  after  the  9.39  acre  purchase 
was  dropped,  E.  M.  Ross  obtained  a  contract  from  Verdugo 
to  buy  on  his  own  account  a  tract  of  58.87  acres,  including 
part  of  the  9.39  acres,  and,  in  connection  therewith,  an  option 
from  Verdugo  for  the  purchase  of  a  tract  of  7.81  acres,  being 
the  westerly  and  remaining  part  of  the  9.39  acres,  at  the 
price  of  $2,500.  He  asked  the  plaintiffs  and  Thorn  to  join 
with  him  in  buying  this  7.81  acres  at  that  price,  as  a  site  for 
the  dam  previously  proposed.  This  tract  did  not  extend 
entirely  across  the  canyon  to  the  east  side,  or  to  solid  ground, 
but  only  to  the  easterly  bank  of  the  wash.  The  plaintiffs 
objected  on  this  account,  and  wanted  to  have  the  tract  ex- 
tended easterly  to  the  railroad  track,  to  which  the  defendant 
refused  to  accede.  Thereupon  a  meeting  was  arranged  at 
which  all  the  interested  parties  were  present  or  represented. 

At  this  meeting  it  was  agreed  that  the  7.81  acre  tract 
should  be  purchased,  and  that  E.  M.  Ross  should  give  a  right 
of  way  from  the  easterly  line  of  the  tract  through  his  58.87 
acre  tract  to  solid  ground  on  the  east  side  of  the  canyon,  as 
a  part  of  the  site  for  the  dam.  Opposite  the  lower  part  of 
the  7.81  acre  tract  a  small  side  canyon  from  the  east  joined 
the  main  canyon,  and  at  the  junction  there  were  evidences 


VERDUGO  CANYON  WATER  Co.  v.  VERDUGO.  299 

of  water.  This  the  defendant  Ross  wanted  to  hold  for  his  own 
use,  and  for  that  reason  he  stipulated  that  the  dam  should  be 
placed  not  more  than  one  hundred  feet  south  of  the  north 
line  of  the  58.87  acre  tract.  The  agreement  was  carried  out 
and  the  grant  of  the  right  of  way  executed  on  September  5, 
1894. 

The  court  finds  that  at  this  meeting  "it  was  feared  that 
there  might  be  some  difficulty  in  the  development  of  water 
on  this  7.81  acre  tract  alone,  by  reason  of  the  fact  that  the 
construction  of  a  dam,  submerged,  might  have  the  effect  of 
turning  the  waters  around  the  east  side  of  the  dam,  and 
thereby  escape  without  being  brought  to  the  surface."  The 
dam  was  a  considerable  distance  below  the  junction  of  all  the 
surface  streams,  and  no  separation  of  the  underflow  into  parts 
corresponding  to  the  respective  surface  streams  was  then  sug- 
gested. All  present  must  have  understood  that  a  dam  across 
the  canyon  to  solid  ground  on  each  side  would  bring  to  the 
surface  all  the  underflow  in  both  tracts  of  land,  that  through 
which  the  right  of  way  extended  as  well  as  the  7.81  acres. 
Nothing  was  said  about  any  division  of  these  waters  so  as  to 
give  to  the  common  owners  the  water  from  their  tract,  and  to 
E.  M.  Ross  that  from  the  right  of  way.  He  did  not  at  that 
time,  nor  until  long  after,  say  or  suggest  that,  when  the  dam 
was  extended  upon  the  right  of  way,  he  would  own,  or  would 
claim,  the  water  coming  directly  from  the  right  of  way,  for  his 
exclusive  use.  It  was  not  suggested  by  anyone  that  any  part  of 
the  water  to  be  obtained  by  the  common  works,  when  com- 
pleted, should  be  devoted  to  any  other  than  common  use,  or 
be  other  than  common  property.  It  is  quite  clear,  however, 
from  all  the  evidence,  that  the  plaintiffs  understood  that  all 
the  water  obtained  was  to  be  owned  and  used  in  common,  and 
that  Judge  Ross,  on  the  other  hand,  understood,  or  believed, 
that  the  water  coming  to  the  dam  through  his  58.87  acre 
tract  would  belong  exclusively  to  him,  and  that  all  other 
water  obtained  would  be  common  water.  It  is  also  manifest 
that  none  of  the  parties  was  aware  of  the  understanding  of 
the  other  on  this  point,  that  each  supposed  that  all  understood 
it  as  he  understood  it,  and  that  each  was  acting  in  perfect 
good  faith,  without  intent  to  deceive,  defraud  or  mislead  the 
other  party  to  the  arrangement. 


300  WATER  RIGHTS  AND  IRRIGATION  LAW. 

The  work  on  the  dam  was  begun  in  1895,  and  was  vigor- 
ously prosecuted  during  that  season.  On  September  30,  1895, 
the  excavation  had  reached  the  land  of  Ross,  and  had  dis- 
closed considerable  underflow  coming  from  his  land.  lie  then 
stated  to  the  plaintiffs  that  it  would  be  necessary  to  "guard 
against  taking  any  water  that  might  be  developed"  on  his 
land.  Several  thousand  dollars  had  then  been  expended  in 
the  work.  About  the  first  of  August,  1896,  he  made  a  defi- 
nite claim  that  the  water  "developed  on  his  land,"  as  he  ex- 
pressed it,  belonged  to  him  exclusively  and  not  to  the  common 
owners,  regardless  of  its  amount.  The  plaintiff  company, 
according  to  the  arrangement  between  the  parties,  was  in 
charge  of  the  work.  Immediately  upon  this  claim  being 
made,  the  work  was  stopped  in  order  to  come  to  a  settlement 
of  the  matter.  At  that  time  the  dam  was  completed  for  a 
distance  of  two  hundred  and  ten  feet  at  the  west  end,  and  the 
excavation  had  been  made  from  the  east  end  of  the  completed 
part  easterly  across  the  7.81  acre  tract  and  some  sixty  feet 
into  the  land  of  E.  M.  Ross,  and  of  a  depth  varying  from 
thirty  to  forty-five  feet.  After  considerable  negotiation,  on 
August  3,  1896,  he  made  a  written  waiver  of  any  claim  he 
might  lawfully  have  to  the  exclusive  use  of  this  water  and 
agreed  to  claim  only  a  one-eighth  of  the  whole  thereof,  in 
common  with  the  others.  The  work  was  then  resumed,  and 
a  substantial  amount  of  expenditure  was  made  upon  it,  after 
this  waiver.  It  was  never  completed,  but  it  has  the  effect  of 
intercepting  from  thirty  to  forty  miner's  inches  of  water 
in  addition  to  the  surface  flow.  From  the  inception  of  the 
work  upon  it  until  the  beginning  of  this  action  the  defendant 
Ross  has  regularly  received  one-eighth  of  the  water  obtained 
thereby,  and  has  paid  one-eighth  of  the  expense  of  maintain- 
ing the  dam  and  operating  the  common  works. 

Shortly  before  the  trial  of  the  case  in  the  court  below,  in  V 
December,  1903,  he  discovered  that  at  the  time  he  made  the 
written  waiver  of  August  3,  1896,  giving  up  any  right  he 
might  have  to  the  exclusive  use  of  the  water,  he  had  forgotten 
the  fact  that  on  August  14,  1894,  a  day  or  two  before  he  began 
to  negotiate  with  Verdugo  for  the  purchase  of  the  7.81  acre 
tract  for  common  use,  the  plaintiffs  had  written  to  him  a 
letter  stating  that  they  could  not  raise  the  money  to  pay 


VEEDUGO  CANYON  WATER  Co.  v.  VERDUGO.  301 

their  share  of  the  price  of  the  9.39  acre  tract  previously  pro- 
posed, the  negotiations  for  which  had  been  left  in  his  hands, 
and  that  they  had  abandoned  the  intention  of  joining  in  the 
purchase.  The  waiver  was  made  upon  the  receipt  of  a  writ- 
ten statement  of  the  plaintiffs,  purporting  to  be  a  history  of 
the  negotiations  from  May,  1894,  up  to  the  execution  of  the 
right  of  way,  in  September,  but  this  letter  was  omitted,  and 
although  it  had  been  all  the  time  in  his  own  possession,  he 
had  completely  forgotten  it,  until,  in  looking  over  his  cor- 
respondence preparatory  to  the  trial,  he  found  it.  His  testi- 
mony was  that,  having  forgotten  that  the  plaintiffs  had  aban- 
doned the  proposed  joint  acquisition  of  a  dam  site,  the  history 
made  it  appear  to  him  that  while  he  was  intrusted  with  the 
negotiations  for  the  9.39  acre  tract  he  had  taken  a  smaller 
tract  instead,  and  thereby  obtained  an  advantage  for  him- 
self, and  that,  not  wishing  to  appear  to  occupy  such  a  posi- 
tion, he  waived  his  rights,  but  that  if  he  had  then  remembered 
the  letter  of  the  plaintiffs  abandoning  the  enterprise,  or  the 
fact  that  they  had  abandoned  it  before  he  took  up  the  nego- 
tiation on  his  own  account,  he  would  not  have  made  the 
waiver.  The  court  found  that  he  was  not  estopped  by  the  * 
giving  of  the  right  of  way  in  1894,  nor  by  the  waiver  of 
1896,  from  pumping  water  from  his  upper  well  and  thereby 
depleting  the  supply  at  the  dam. 

The  conclusion  that  he  was  not  estopped  by  the  waiver  of  '-•" 
August  3,  1896,  alone  was  clearly  correct.  It  had  been  given 
under  a  mistake  of  fact,  and  but  for  that  mistake  it  would 
have  been  withheld.  His  failure  to  recall  the  fact  of  plain- 
tiffs' withdrawal  from  the  scheme  was  not  that  degree  of 
neglect  that  wrould  bind  him  to  stand  by  the  waiver,  notwith- 
standing the  mistake  by  which  it  was  induced. 

The  question  whether  or  not  he  is  estopped  by  the  execu- 
tion of  the  grant  of  the  right  of  way,  the  circumstances  upon 
which  it  was  given,  and  the  subsequent  action  of  the  plain- 
tiffs on  the  faith  of  it,  presents  greater  difficulty.  He  had 
the  right  to  take  out  water  by  wells  or  otherwise  of  the 
surplus  underflow  of  the  canyon  to  the  extent  of  his  reason- 
able proportion  thereof,  for  use  upon  his  lands  in  the  canyon 
tract,  provided  he  did  not  thereby  injuriously  affect  the 


302  WATER  RIGHTS  AND  IRRIGATION  LAW. 

surface  flow  of  the  west-side  stream.  The  plaintiffs  were  fully 
aware  of  this  right.  His  offer  of  an  interest  in  the  7.81  acres, 
with  the  right  of  way,  was  practically  an  offer  from  him  to 
them.  It  was  substantially  the  offer  of  an  opportunity  to 
carry  out  the  original  plan  at  less  cost,  and  it  was  so  under- 
stood. The  plaintiffs  were  thereby  induced  to  accept  and 
pay  for  a  three-fourths  interest  in  the  site  and  to  pay  three- 
fourths  of  the  cost  of  the  works  constructed  thereon.  The 
whole  object,  so  far  as  the  plaintiffs  knew,  and  he  stated 
nothing  to  the  contrary,  was  to  add  the  water  of  the  underflow 
to  be  collected  by  the  dam,  including  the  underflow  of  the 
east-side  stream,  to  the  waters  of  the  west-side  stream,  set 
apart  for  use  on  the  lands  below.  He  was  a  tenant  in  com- 
mon with  them  in  the  west-side  stream. 

If,  under  all  these  circumstances,  it  was  a  part  of  his  de- 
sign to  induce  them  to  aid,  to  the  extent  of  three-fourths  of 
the  cost,  in  the  erection  of  a  dam  to  intercept  all  the  under- 
flow, in  which,  as  it  was  then  flowing  at  that  place,  all  were 
entitled  to  share,  in  order  that,  by  means  of  that  dam,  he 
could  obtain  for  his  own  exclusive  use  all  that  part  of  the 
water  that  might  flow  out  of  the  land  through  which  he  was 
to  grant  the  right  of  way;  if  he  proposed  to  secure  this  ad- 
vantage from  their  efforts  and  expenditure  in  the  common 
work,  the  principles  of  equity  and  justice,  and  the  relations 
existing  between  them,  demanded  of  him  a  full  and  frank 
disclosure  of  his  purposes  and  claims.  He  had  no  right  to 
remain  silent  in  the  belief  that  they  understood  the  matter  as 
he  did.  One  who  is  embarking  with  others  in  a  common  en- 
terprise to  use  common  property  for  the  common  benefit,  at 
common  expense,  owes  to  the  others  the  duty,  if  he  proposes 
or  intends  to  reserve  a  part  of  the  benefit  to  himself  exclu- 
sively, to  inform  the  others  fully  in  regard  to  it.  If  he  does 
not,  he  will  be  estopped  to  assert  his  claim  after  the  others 
have  incurred  the  expense. 

This  seems  to  have  been  the  view  of  the  court  below  with 
regard  to  all  the  underflow  that  actually  reached  the  dam; 
for  it  declared  all  those  waters  to  be  subject  to  the  common 
ownership,  in  the  proportions  stated,  for  use  on  the  lands  be- 
low. We  are  of  the  opinion  that  the  estoppel  does  not  ap- 
ply to  the  claim  that  he  has  the  right  to  take  by  means  of 


VEEDUGO  CANTON  WATER  Co.  v.  VERDUGO.  303 

pumps  in  the  canyon  above,  his  reasonable  share  of  the  under- 
flow, for  use  on  his  lands  on  the  Canyon  tract.  .  .  . 

All  these  authorities  agree  that  no  estoppel  can  exist  un- 
less the  party  invoking  it  was  led  to  place  himself  in  the  preju- 
dicial position,  in  part,  at  least,  by  his  own  ignorance  of  the 
rights  of  the  other  party,  his  own  lack  of  knowledge  of  the 
true  state  of  the  title.  This  element  is  entirely  wanting  in 
the  present  instance.  The  plaintiffs  knew  that  E.  M.  Ross 
owned  land  in  the  Canyon  tract,  that  he  had  a  large  orchard 
thereon  above  the  proposed  dam,  which  required  water,  and 
that  he  had  the  right  to  use  thereon  a  due  proportion  of  the 
underflow  of  the  canyon.  They  may  have  supposed  and  be- 
lieved that  he  did  not  intend  to  exercise  that  right,  but  they 
were  not  led  to  that  belief  by  any  act  or  word  of  his.  His 
conduct  in  entering  into  the  work  with  them  to  obtain  the 
underflow  at  the  dam  for  use  on  his  lower  lands,  which  were 
entitled  to  a  share  thereof,  was  not  inconsistent  with  his 
right  to  take,  from  the  same  flow  above,  the  share  of  the 
water  to  which  his  upper  land  was  reasonably  entitled.  He 
could  not  obtain  the  water  from  the  dam  for  use  on  the  upper 
land,  and  he  said  nothing  to  indicate  that  he  would  not  ob- 
tain it  by  other  means,  if  the  upper  land  required  it  in  the 
future.  (As  the  plaintiffs  acted  with  full  knowledge  of  his 
right,  and  without  any  promise  or  representation  by  him  that 
he  would  not  exercise  it  if  occasion  arose,  he  is  not  estopped 
to  pump  water  from  his  upper  well,  for  use  on  his  part  of 
the  Canyon  tract,  to  the  full  extent  of  the  share  due  to  that 
land. 

8.  The  appeal  of  the  defendant  E.  M.  Ross  is  from  that 
part  of  the  judgment  fixing  his  right  to  pump  water  from  his 
"upper  well,"  which  limits  the  amount  he  can  pump  to 
twenty-two  and  one-fourth  miner's  inches,  and  forbids  him 
from  using  it  elsewhere  than  on  the  Canyon  tract.  What  has 
been  said  sufficiently  disposes  of  the  questions  presented  by 
this  appeal.  Under  the  partition  he  is  given  only  the  right 
to  the  surface  flow  of  the  east-side  stream.  With  regard  to 
the  available  unpartitioned  underflow,  he  is  entitled,  as  a 
riparian  owner,  to  his  reasonable  share  thereof  and  may  use 
it  upon  any  of  his  riparian  laud  in  the  Canyon  tract.  In  re- 
gard to  his  right  to  take  the  underflow,  by  means  of  a  pump, 


30-1  WATER  RIGHTS  AND  IRRIGATION  LAW. 

from  his  land  above  the  dam  for  use  upon  his  lands  below, 
his  riparian  rights  are  modified  by  the  estoppel  existing 
against  him  by  reason  of  the  facts  referred  to  in  the  preced- 
ing subdivision  of  this  opinion.  As  we  have  said  the  dam 
was  built  to  intercept  all  this  underflow  and  devote  it  to  use 
on  the  lower  lands,  and  he,  no  more  than  the  other  parties 
interested,  should  be  permitted  to  take  out  water  from  the 
underflow  above  the  dam  for  use  on  the  lower  lands,  to  a 
sufficient  extent  to  decrease  the  amount  thereof  that  will  flow 
to  and  be  intercepted  by  the  dam.  If  any  can  be  taken  out 
without  producing  that  effect,  he  and  the  other  owners  of 
riparian  lands  below  are  each  entitled  to  a  reasonable  share 
thereof. 

9.  In  conclusion  it  is  necessary  to  give  some  directions  re- 
lating to  a  new  trial.  If  pumping  is  allowed  without  check, 
above  the  points  of  diversion  of  the  surface  streams,  it  is 
practically  certain  that  those  streams  will  cease  to  flow.  It 
is  by  no  means  certain  that  the  pumping  now  going  on  below 
those  points  does  not  exceed  the  average  normal  flow  of  the 
underground  stream,  that  it  is  not  in  fact  a  process  of  ex- 
haustion, so  that  in  a  few  years  of  use  at  the  same  rate,  even 
that  supply  will  fail.  (No  party  above  or  below  the  damv 
should  be  allowed  to  take  by  such  process  more  than  his  rea- 
sonable part  of  the  available  surplus,  if  such  taking  affects 
the  surface  streams,  or  prevents  another  party  from  obtaining 
his  reasonable  share.  (And  -no  party,  of  those  entitled  to  V 
use  the  water  collected  by  the  submerged  dam,  has  the  right 
to  pump  water  above  the  dam  for  use  on  his  lands  below,  if 
such  pumping  decreases  the  flow  at  the  dam.  The  only  just 
method  of  adjusting  the  rights  in  this  surplus  of  the  under- 
flow is  to  ascertain,  as  near  as  may  be,  the  total  average 
amount  thereof  available  for  this  use,  and  the  amount  re- 
quired by  each  party  when  used  as  economically  and  spar- 
ingly as  may  be  reasonably  possible,  and,  upon  this  basis, 
apportion  to  each  his  due  share.  In  this  calculation,  the 
amount  of  underflow  collected  by  the  dam  should  be  included 
as  a  part  of  the  whole  available  surplus  underflow,  and  the 
portions  of  that  water  delivered  to  those  interested  in  the 
dam,  not  including  the  surface  flow  there  distributed,  are  to 
be  charged  to  said  parties,  respectively,  against  their  share 


YEBDUGO  CANYON  WATER  Co.  v.  VERDUGO.  305 

of  such  underflow.  Also,  those  who  are  now  pumping  water 
of  the  underground  stream  above  or  below  the  dam  must  be 
charged  therewith  as  part  of  their  shares  and  the  amount 
pumped  computed  as  part  of  the  whole  supply  to  be  appor- 
tioned. It  is  certain  that  there  will  be  no  surplus,  and  it 
may  turn  out  that  some  are  pumping  or  receiving  more  than 
their  share.  It  appears  that,  in  some  instances,  several  per- 
sons use  a  common  pump.  There  can  be  no  objection  to  this, 
if  all  of  them  are  entitled  to  receive  some  amount  and  re- 
ceive only  their  due.  In  the  case  of  the  diversion  of  a  sur- 
face stream,  the  portions  allotted  to  the  respective  parties, 
and  the  whole  flow  of  the  stream,  can  be  readily  measured, 
and  a  fair  division  of  such  waters  may  easily  be  made  self- 
executing  by  the  mere  device  of  giving  to  each  a  fixed  propor- 
tion of  the  whole,  instead  of  a  certain  quantity  of  water,  so 
that,  although  the  total  quantity  in  the  stream  may  vary, 
the  rule  of  division  will  remain  constant.  But  this  cannot 
well  be  done  where  different  persons,  each  upon  his  own  land, 
and  by  means  of  his  own  pump,  is  taking  a  proportion  of  an 
underground  stream.  In  such  a  case  the  parties  would  not 
be  able  to  agree  upon  the  total  amount  available  of  the  under- 
ground supply,  and  there  would  be  no  means  of  accurate 
measurement  to  settle  their  differences,  as  in  the  case  of  com- 
mon shares  of  a  surface  stream.  A  decree  merely  fixing  the 
proportion  of  the  underground  supply  to  which  each  was  en- 
titled would  be  of  no  benefit,  for  it  would  not  enable  either 
party  to  know  the  amount  which  he  could  pump.  The  total 
supply  can  only  be  determined  by  the  court  after  a  considera- 
tion of  such  evidence  as  it  can  obtain  on  the  question.  It  will 
be  necessary  for  the  court  to  determine  from  the  evidence  the 
total  amount  of  the  underflow  available  for  a  division  and  to 
determine  the  share  of  each  by  fixing  a  positive  quantity 
which  each  may  take  as  his  proper  proportion  of  the  whole. 

The  judgment  and  order  are  reversed,  with  costs  of  appeal 
in  favor  of  plaintiffs. 
20 


306  WATER  RIGHTS  AND  IRRIGATION  LAW. 


Percolating  Waters — Use  on  Distant  Lands — Overlying  Land 
Owner's  Rights — Appropriator's  Right  to  Surplus. 

JOHN  BURR,  Appellant,  v.  MACLAY  RANCHO  WATER 
COMPANY,  Respondent.  H.  R.  HILLE  et  al.,  Inter- 
veners  and  Respondents. 

(154  Cal.  428,  98  Pae.  260.) 

SHAW,  J. — The  plaintiff  sued  to  enjoin  the  defendant 
company  from  pumping  water  from  its  wells  on  land  adjoin- 
ing that  of  plaintiff  and  transporting  such  water  to  distant 
lands  for  irrigation  and  use  on  such  remote  lands.  The  in- 
terveners  own  some  of  this  remote  land  and  claim  rights  to 
receive  the  water  pumped  by  the  defendant,  under  contracts 
made  with  defendant  to  furnish  them  with  water  for  use  on 
their  respective  tracts  of  land.  The  plaintiff  has  wells  on 
his  land,  from  which  he  pumps  water  sufficient  for  irrigation 
and  other  uses  thereon,  and  the  injury  he  complains  of  is 
the  lowering  of  the  water  underneath  the  surface,  caused  by 
the  pumping  of  the  defendant's  wells,  whereby  his  wel]s  are 
drained  of  water.  The  court,  upon  the  facts  found,  con- 
cluded that  the  plaintiff  was  entitled  to  pump  from  his  wells, 
for  irrigation  of  one  tract  of  his  land  containing  forty  acres, 
designated  as  block  191,  for  six  consecutive  days  of  twenty- 
four  hours  each,  in  each  month,  a  constant  flow  of  twenty-five 
inches  of  water,  miner's  measure,  measured  under  four-inch 
pressure,  that  during  this  period  the  defendant  had  no  right 
to  pump  any  water,  and  that,  during  the  intervening  time, 
the  defendant  has  the  right  to  pump  water  from  its  wells 
and  carry  the  same  to  distant  lands  for  sale  and  use  thereon, 
to  the  amount  of  one  hundred  and  twenty-five  miner 's  inches, 
constant  flow.  The  interveners  claim,  and  were  declared 
entitled  to  claim,  solely,  under  the  defendant.  Judgment 
was  given  in  accordance  with  these  conclusions.  The  plain- 
tiff appeals  from  the  judgment  upon  the  judgment-roll  alone. 

The  lands  of  the  plaintiff  consist  of  three  tracts,  designated 
respectively  as  blocks  153,  190  and  191  of  the  Maclay  Rancho 
Ex-Mission  San  Fernando,  according  to  the  recorded  plat 
thereof,  and  embracing  ninety  acres.  His  wells  are  situated 


BUBB  v.  MACLAY  RANCHO  WATER  Co.  307 

on  block  191,  which  is  practically  all  set  out  in  fruit  trees 
requiring  irrigation.  Until  shortly  before  this  suit  was  be- 
gun he  had  not  irrigated  the  other  tracts.  The  main  contro- 
versy concerns  the  rights  pertaining  to  block  191,  but  the 
plaintiff  also  claims  the  right  to  pump  water  from  his  wells 
on  that  block  to  irrigate  the  lands  of  the  other  two  blocks  if 
he  should  find  it  convenient  to  do  so.  He  did  for  a  short 
time  irrigate  fifteen  acres  of  block  190.  The  plaintiff  claims 
that,  upon  the  facts  found,  the  court  erred  in  limiting  at  all 
his  right  to  take  water  by  means  of  his  pumps,  and  in  ad- 
judging to  the  defendant  the  right  to  take  water  from  the 
adjoining  lot  by  means  of  pumps,  or  otherwise  than  by  the 
natural  artesian  flow  of  the  wells,  or  to  a  greater  extent  than 
thirty  inches  of  constant  flow. 

The  lands  of  the  plaintiff  and  a  part  of  block  192  are  all 
situated  over  the  same  body  of  underground  percolating 
water.  Concerning  this  body  of  water  the  finding  is  that 
underneath  all  the  said  lands,  and  extending  to  the  foot  of 
the  mountains,  three  or  four  miles  northerly  thereof,  are 
water-bearing  strata  of  varying  depths  of  sand,  boulders,  and 
coarse  material,  and  lying  over  each  stratum  is  an  impervious 
stratum  of  clay  or  cement,  extending  toward,  but  not  en- 
tirely to,  said  mountains ;  that  across  the  said  strata  and  run- 
ning through  the  southerly  portion  of  block  192,  which  lies 
immediately  south  of  block  191,  there  is  dike  of  material  im- 
pervious to  water ;  that  the  subterranean  waters  in  the  water- 
bearing strata  are  supplied  by  rains  falling  on  the  mountains 
to  the  north  and  east  which,  descending  the  surface  of  the 
mountain  slopes  to  the  base  of  the  mountains,  there  find  their 
way  into  the  coarse  material  and  from  thence  into  said  water- 
bearing strata,  through  which  they  percolate  underneath  the 
overlying  strata  of  clay  or  cement  and  under  the  lands  of 
plaintiff  and  the  northern  portion  of  block  192,  "down  to  the 
said  dike,  by  means  of  which  the  movement  of  the  said  water 
is  arrested,  and  the  waters  impounded,  forming  a  subter- 
ranean basin  wherein  the  said  subterranean  waters  are  re- 
tained." The  seven  wells  of  the  defendant  are  all  situated 
on  the  part  of  block  192  north  of  this  dike,  and  pierce  the 
said  water-bearing  strata  and  subterranean  basin.  The  water 
pumped  therefrom  is  all  taken  away  to  lands  lying  south  of 


308  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  dike,  a  large  portion  of  it  being  several  miles  distant 
therefrom  and  none  of  it  overlying  the  subterranean  basin 
aforesaid.  The  lands  of  the  interveners  lie  from  two  to  four 
miles  south  of  said  dike. 

The  plaintiff  acquired  block  191  in  1886  and  ever  since 
January,  1887,  he  and  his  family  have  resided  thereon.  In 
that  year  he  began  planting  orchards  thereon  and  gradually 
increased  the  area  thereof  until  1897.  In  1896  he  bored  five 
wells  along  the  southern  line  of  the  block  and  put  a  pump- 
ing-plant  therein,  from  which,  until  the  defendant  began  to 
pump  on  block  192  in  June  of  the  year  1902,  he  pumped 
water  to  the  amount  of  twenty-five  miner's  inches  for  six  full 
days  consecutively  each  month,  using  the  same  to  irrigate 
said  block,  and  the  same  being  necessary  for  that  purpose. 
This  water  was  taken  into  his  pumps  in  the  wells  at  a  depth 
of  twenty-four  feet  below  the  surface,  and  it  appears  from 
the  findings  that  his  wells  and  pumps,  as  constructed,  cannot 
take  the  water  at  a  lower  depth.  He  has  no  other  water 
supply  and  the  water  is,  of  course,  necessary  to  prevent  the 
destruction  of  his  orchards. 

In  June,  1902,  the  defendant  began  pumping  from  its  wells 
on  block  192,  over  the  basin  aforesaid,  about  one  hundred 
and  twenty-five  miner's  inches  of  water,  and,  until  the  suit 
was  begun,  continued  to  do  so,  transporting  the  water  to  the 
distant  lands  above  mentioned  and  there  distributing  the 
same  for  irrigation  and  other  purposes.  Prior  to  this  ex- 
cessive pumping  the  water  in  plaintiff's  wells  had  usually 
stood  at  a  general  level  of  nine  feet  below  the  surface.  The 
consequence  of  the  operation  of  the  defendant's  pumps  as 
stated  was  that  during  the  remainder  of  the  year  1902,  while 
the  pumps  were  so  operating,,  the  level  of  the  water  in  plain- 
tiff's wells  was  reduced  to  twenty-seven  feet,  and  during  the 
year  1903  to  thirty  feet  below  the  surface.  The  trial  oc- 
curred in  May,  1904.  At  such  times  as  the  defendant  did  not 
operate  its  said  pumps  the  water  level  in  plaintiff's  wells 
stood  at  fourteen  feet  below  the  surface  in  the  year  1902 
and  at  sixteen  feet  in  the  year  1903.  While  the  defendant 
is  operating  its  pumps  it  is  impossible  for  the  plaintiff  to 
obtain  any  water  from  his  wells  by  means  of  his  pumps. 


BURR  v.  MACLAY  RANCHO  WATER  Co.  309 

;  It  is  necessary  to  consider,  briefly,  certain  contracts  men-v 
tioned  in  the  findings.  All  the  land  affected  by  this  action  is 
included  in  a  tract  of  twenty  thousand  acres  formerly  owned 
by  Charles  Maclay,  from  whom  all  the  parties  and  all  the 
owners  of  lands  to  which  the  defendant  supplies  water  from 
its  wells,  derive  title.  On  September  9,  1885,  Maclay  con- 
veyed this  tract  to  five  trustees,  who  were  to  subdivide  and  sell 
it.  They  were  to  expend,  and  did  expend,  twenty  thousand 
dollars  in  subdividing  and  marketing  the  land  and  in  con- 
structing dams,  reservoirs,  and  conduits  and  in  boring  arte- 
sian wells.  In  the  fall  of  1885  they  bored  the  seven  wells 
aforesaid  and  obtained  an  artesian  flow  of  thirty  miner's 
inches  of  water  therefrom,  which,  with  water  from  other 
sources,  they  thenceforth  distributed  to  some  of  the  lands  in 
the  tract.  From  these  wells  the  defendant  is  now  pumping 
the  one  hundred  and  twenty-five  inches  in  controversy.  In 
all  the  deeds  made  by  the  trustees,  including  those  to  the 
plaintiff  and  the  interveners,  there  was  a  clause  reserving  to 
the  grantors  "All  artesian  water  that  may  be  developed  on 
said  land,  and  not  used  thereon."  The  defendant  has  suc- 
ceeded to  all  the  rights  of  the  trustees  in  the  water  thus  re- 
served. 

Some  importance  seems  to  have  been  attached  to  this  reser- 
vation in  the  court  below,  but  we  do  not  think  it  affects  the 
rights  in  controversy  in  the  case.  It  does  not  extend  to  the 
artesian  water  that  may  be  necessary  for  use  on  the  land 
from  which  it  may  be  obtained,  nor  to  any  water  except 
artesian  water.  It  reserved  no  right  to  enter  on  the  land  to 
develop  artesian  water.  Conceding  that  the  word  "artesian" 
has  the  meaning  sometimes  given  to  it,  and  refers  to  under- 
ground water  which,  by  reason  of  pressure,  will  rise  above  its 
natural  level,  though  not  to  the  surface  of  the  ground,  when 
the  stratum  in  which  it  lies  is  pierced  by  a  well,  the  reserva- 
tion does  not  restrict  the  right  of  the  plaintiff  to  take  such 
water  from  the  underground  strata  and  use  it  on  his  land, 
situated  as  it  is,  over  the  strata.  This  is  all  that  the  plain- 
tiff claims.  The  only  limitation  it  would  appear  to  impose  is 
that  where  different  blocks  are  obtained  by  separate  deeds, 
each  containing  this  reservation,  it  does  not,  in  terms,  give 


310  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  owner  the  right  to  take  water  from  the  basin  by  wells 
situated  on  one  of  his  blocks  and  use  it  upon  the  other.  If 
the  first  tract  had,  and  the  second  had  not,  underground 
water  of  the  kind  reserved,  this  would  clearly  be  a  substan- 
tial violation  of  the  rights  reserved.  But  the  plaintiff's  re- 
spective blocks  of  land  are  all  situated  over  the  basin  in 
question,  and  each  block  is  entitled  to  sufficient  water  from 
the  basin  for  the  necessary  use  thereon.  The  taking  of  it  all 
by  means  of  wells  on  one  lot,  instead  of  boring  wells  on  each 
and  obtaining  for  each  the  necessary  water  from  its  own 
well,  would  be  a  mere  technical  and  wholly  unsubstantial 
departure  from  the  terms  of  the  reservation,  unless  some  spe- 
cial injury  results  from  the  location  of  the  respective  wells. 
If  the  pumping  by  the  plaintiff  of  all  the  necessary  water  for 
his  three  blocks  from  the  wells  on  block  191,  so  near  to  the 
defendant's  wells,  would  materially  lower  the  water  level  in 
its  wells,  there  might  be  the  substance  of  an  injury  to  the 
defendant.  But  the  findings  show  that  the  lowering  of  the 
water  level  is  caused  by  the  excessive  pumping  of  the  defend- 
ant and  not  by  the  pumping  done  by  the  plaintiff.  Even  the 
simultaneous  pumping  of  twenty-five  inches  by  the  plaintiff 
and  a  considerable  quantity  by  the  defendant,  the  amount 
not  being  stated,  but  presumably  as  much  as  the  original 
thirty  inches,  which  was  customary  prior  to  June,  1902,  did 
not  materially  affect  the  water  level.  But  at  all  events  the  V 
most  that  the  defendant  could  claim  is  that  the  plaintiff  be 
required  to  take  upon  each  block,  separately  acquired,  the 
water  used  thereon,  if  the  other  method  proves  injurious. 

With  respect  to  plaintiff's  blocks  153  and  that  part  of  190 
upon  which  he  has  not  used  the  water,  but  upon  which  he 
claims  the  right  hereafter  to  use  it,  a  question  is  presented 
which  was  expressly  left  undetermined  in  Katz  v.  Walkin- 
shaw  and  which  was  not  therein  involved.  The  plaintiff, 
with  regard  to  this  land,  stands  in  the  position  of  the  second 
class  mentioned  in  the  above  quotation.  The  plaintiff,  when 
the  defendant  began  pumping  the  one  hundred  and  twenty- 
five  inches  in  June,  1902,  gave  it  notice  that  the  pumping  was 
lowering  the  water  level  and  impairing  his  rights.  The  suit 
was  begun  in  July,  1903,  and  the  facts  found  by  the  court 


BURR  v.  MACLAY  KANCHO  WATER  Co.  311 

show  that  no  estoppel  in  pais  exists  in  favor  of  the  defend- 
ants to  prevent  the  plaintiff  from  asserting,  protecting,  and 
enforcing  such  rights  as  he  may  have  to  the  water  for  use 
on  blocks  153  and  190.  The  question  is  therefore  fairly  pre-  .. 
sented  whether  or  not,  after  an  appropriator  of  water  from  a 
common  water-bearing  strata  has  begun  to  take  the  water 
therefrom  to  distant  lands  not  situated  over  the  strata,  for 
use  on  such  distant  lands,  the  owner  of  other  overlying  land 
upon  which  he  has  never  used  the  water,  may  invoke  the  aid 
of  a  court  of  equity  to  protect  him  in  his  right  to  thereafter 
use  such  water  on  his  land,  and  thus  prevent  the  appropriator 
from  defeating  such  land  owner's  right,  or  acquiring  a  para- 
mount right,  by  adverse  use,  or  by  lapse  of  time.  It  appears 
from  the  findings  that  the  existence  of  this  underlying  water 
was  known  before  the  lands  were  conveyed  to  the  trustees  by 
Maclay,  and  that  the  plaintiff  bought  his  tract  from  the 
trustees  because  of  its  situation  with  respect  to  that  water 
and  relying  upon  said  natural  water  supply,  and  that  with- 
out this  water  the  land  is  of  little  value.  Under  these  cir- 
cumstances it  does  not  seem  reasonable  or  just  to  adopt  a 
rule  that  would  deprive  the  buyer  of  such  land  of  the  prin- 
cipal benefit  of  his  purchase  and  the  land  of  its  chief  element 
of  value.  The  land  being  so  situated  that  it  has  the  natural 
advantages  afforded  by  the  underlying  water,  the  conditions 
are  analogous  to  those  affecting  land  riparian  to  a  stream, 
which,  because  of  its  situation  with  reference  to  the  stream, 
is  given  rights  to  the  waters  thereof,  so  far  as  necessary  for 
use  thereon,  which  are  paramount  to  the  right  of  another 
riparian  owner  to  divert  the  water  to  lands  not  riparian. 
The  reasonable  rule  here  would  be  to  hold  that  the  defend- 
ant's appropriation  for  distant  lands  is  subject  to  the  reason- 
able use  of  the  water  on  lands  overlying  the  supply,  particu- 
larly in  the  hands  of  persons  who  have  acquired  it  because 
of  these  natural  advantages,  and  we  therefore  hold  this  to  be 
the  law  of  the  case  with  respect  to  the  lands  upon  which  no 
water  has  been  used  by  the  plaintiff. 

In  the  case  of  either  class  of  owners  of  overlying  lands,   * 
the  appropriator  for  use  on  distant  land  has  the  right  to  any 
surplus  that  may  exist.      If  the  adjoining  overlying  owner 
does  not  use  the  water,  the  appropriator  may  take  all  the 


312  WATER  RIGHTS  AND  IRRIGATION  LAW. 

regular  supply  to  distant  land  until  such  land  owner  is  pre- 
pared to  use  it  and  begins  to  do  so.  It  is  not  the  policy  of 
the  law  to  permit  any  of  the  available  waters  of  the  country 
to  remain  unused,  or  to  allow  one  having  the  natural  ad- 
vantage of  a  situation  which  gives  him  a  legal  right  to  water 
to  prevent  another  from  using  it,  while  he  himself  does  not 
desire  to  do  so.  The  established  and  settled  law  of  riparian  V 
rights  in  running  streams,  which  have  become  vested  rights, 
may  compel  a  different  rule  with  regard  to  such  waters  in 
some  instances,  but  these  rules  of  law  do  not,  of  necessity, 
control  rights  in  percolating  waters.  The  most  that  should 
be  allowed  in  such  circumstances  is  to  give  a  party  the  aid 
of  the  courts  to  protect  his  right  and  prevent  the  destruction 
of  his  source  of  supply  by  excessive  use  or  other  cause.  The 
court  unquestionably  has  power  to  make  reasonable  regula- 
tions for  the  use  of  such  water  by  the  respective  parties,  fix- 
ing the  times  when  each  may  take  it  and  the  quantity  to  be 
taken,  provided  they  be  adequate  to  protect  the  person  hav- 
ing the  paramount  right  in  the  substantial  'enjoyment  of  that 
right  and  to  prevent  its  ultimate  destruction. 

The  judgment  of  the  court  below,  with  respect  to  block  191, 
was  apparently  based  upon  the  rule  established  in  Katz  v. 
Walkinshaw,  141  Cal.  116,  135,  99  Am.  St.  Rep.  35,  70  Pac. 
663,  74  Pac.  766,  64  L.  R.  A.  236,  and  was  made  with  the 
design  to  allow  the  defendant  to  take  as  much  of  the  water, 
and  no  more,  as  should  be  compatible  with  the  paramount 
right  of  the  plaintiff.  In  view  of  the  findings,  however,  we ' 
think  the  judgment,  in  its  present  form,  might  eventually 
prove  insufficient  for  the  protection  of  plaintiff's  right.  The 
watershed  supplying  the  underground  strata  is  of  limited 
area,  and  in  some  years  but  little  water  is  contributed  to  the 
subterranean  basin,  because  of  the  light  rainfall.  The  effect 
of  the  defendant's  pumping  for  a  period  of  a  little  over 
eighteen  months  was  to  lower  the  permanent  water  level,  as 
it  stood  when  the  pumps  were  idle,  as  much  as  seven  feet. 
By  reason  thereof  the  plaintiff  is  compelled  to  lift  the  water 
seven  feet  higher  than  before  the  defendant  began  its  pres- 
ent appropriation.  Perhaps,  in  view  of  the  extreme  neces- 
sity for  water  and  the  great  benefit  derived  therefrom,  this 
additional  burden  upon  the  plaintiff  may  not  be  unreason- 


BURB  v.  MACLAY  RANCHO  "WATER  Co.  313 

able.  But  if  the  judgment  permitting  this  pumping  by  the 
defendant  is  affirmed  without  modification,  it  will  be  final 
between  the  parties,  and  the  defendant  will  have  a  perpetual 
right  to  continue  the  drain  upon  the  limited  supply.  This 
climate  is  subject  to  occasional  periods  of  several  successive 
years  of  comparative  drought.  We  have  recently  had  a  ten- 
year  period  of  that  kind,  which  was  just  closing  at  the  time 
this  pumping  by  defendant  began.  It  is  probable  that,  if 
another  such  period,  or  even  shorter  one,  should  occur,  or  pos- 
sibly with  a  normal  rainfall,  the  continuous  pumping  of  one 
hundred  and  twenty-five  inches  from  this  limited  supply  will 
continue  to  lower  the  permanent  water  level  of  the  basin  un- 
til the  plaintiff  will  be  unable  to  reach  it  with  his  pumps.  It 
is  not  impossible  that  ultimately  the  basin  will  thereby  be 
entirely  emptied  of  water.  The  findings  do  not  show  the 
quantity  of  water  that  will  be  annually  supplied  to  these  un- 
derground strata  by  the  average  annual  rainfall  upon  the 
watershed  from  which  it  comes.  They  are  silent  on  this  point. 
It  is  manifest  that  if  the  quantity  taken  therefrom  exceeds 
the  average  annual  amount  contributed  thereto,  the  under- 
ground store  will  be  gradually  depleted  and  eventually  ex- 
hausted. This  should  not  be  permitted.  The  judgment 
should  be  so  modified  as  to  provide  for,  or  permit,  the  preven- 
tion of  such  a  catastrophe  and  to  limit  the  amount  taken  by 
all  the  consumers  to  a  quantity,  as  near  as  may  be,  equal  to 
the  average  constant  supply  from  the  rainfall.  It  should  also 
be  framed  so  as  to  prevent  the  lowering  of  the  permanent 
level  to  such  an  extent  that  the  plaintiff  will  be  unable  to  ob- 
tain by  his  pumps  sufficient  water  therefrom  for  use  upon  his 
lands. 

These  observations  apply  with  equal  force  to  the  right  of 
the  plaintiff  to  have  the  supply  protected  for  future  use  upon 
the  portion  of  his  lands  not  hitherto  supplied  with  water. 
The  judgment  makes  no  provision  whatever  for  the  protec- 
tion of  the  right  of  these  lands  to  share  in  the  water. 

It  is  therefore  ordered  that  the  judgment  of  the  superior 
court  be  modified  by  adding  thereto,  immediately  preceding 
the  date  line  thereof,  the  following  clauses: 


314  WATEB  RIGHTS  AND  IRRIGATION  LAW. 

X. 

Provided,  however,  that  in  no  event  shall  the  defendant  be 
allowed  to  take  of  the  waters  in -the  strata  pierced  by  its 
wells  a  quantity  greater  than  is  supplied  thereto  from  the 
average  annual  rainfall  upon  the  watershed  contributing 
thereto  and  from  other  sources ;  nor  shall  it  be  allowed  to  take 
therefrom  a  quantity  that  will  reduce  the  water  level  in 
plaintiff's  wells,  during  the  periods  when  the  plaintiff  is 
herein  given  the  right  to  pump  therefrom,  to  such  an  extent 
that  the  plaintiff,  with  pumps  operating  at  the  depth  of  his 
present  pumps  and  with  equal  capacity,  will  be  unable  to  ob- 
tain therefrom  enough  water  to  properly  irrigate  his  said 
block  191  during  such  period,  not  exceeding  the  quantity 
hereinbefore  stated. 

It  is  further  adjudged  and  declared  that  the  plaintiff,  as 
the  owner  of  said  blocks  153  and  190,  has  the  right  to  take 
and  use  of  the  said  waters  underlying  said  block,  respectively, 
a  sufficient  quantity  for  irrigation  and  other  uses  thereon,  or 
his  due  share,  in  case  there  is  not  enough  for  all  equally 
entitled  therefrom,  at  such  reasonable  times  as  it  may  be 
necessary  and  convenient  to  do  so,  and  that  such  right  is 
parcel  of  said  lands;  that  he  may  take  such  water  through 
and  by  means  of  wells  situated  thereon,  and  that  he  must, 
when  he  desires  to  use  the  same,  give  the  defendant  ten  days ' 
notice  of  the  time  or  times  when  he  will  begin  such  use,  and 
the  defendant  must  thereupon  at  such  times  cease  pumping 
its  wells  for  a  sufficient  time  to  allow  plaintiff  to  obtain 
enough  water  for  one  irrigation  of  so  much  of  the  particular 
block  as  may  then  require  irrigation ;  that  the  continued  pump- 
ing of  said  water  in  future  by  said  defendant,  as  herein  per- 
mitted, shall  not  be  deemed  adverse  to  the  rights  of  plaintiff 
herein  declared,  whether  such  rights  are,  or  are  not,  used  by 
plaintiff,  and  that  defendant  be  forever  enjoined  from  as- 
serting or  claiming  rights  in  such  water  paramount  to  those 
of  plaintiff  herein  declared. 

Nothing  in  this  judgment  shall  be  construed  to  prevent  the 
defendant  from  pumping  from  its  said  wells  on  block  192,  at 
the  times  when  by  this  judgment  it  is  allowed  to  pump  there- 
from a  quantity  of  water  which,  when  added  to  the  natural 


BARCLAY  v.  ABRAHAM.  315 

flow,  if  any,  of  said  wells,  will  equal  a  flow  of  thirty  inches 
of  water  measured  under  a  four-inch  pressure,  and  using  the 
same  on  distant  lands. 

As  thus  modified  the  judgment  shall  stand  affirmed. 


Subterranean  Waters  —  Presumed  Percolating  —  Intent. 

BARCLAY  v.  ABRAHAM  et  al. 

(121  Iowa,  619,  100  Am.  St.  Eep.  365,  96  N.  W.  1080,  64  L.  E.  A.  255.) 

Plaintiff  is  owner  of  the  south  one-half,  southwest  one- 
quarter  of  section  10,  and  north  one-half,  northwest  one-quar- 
ter of  section  15,  township  82  north,  of  range  25  west,  of  the 
fifth  P.  M.  The  defendant  owns  the  north  one-half,  south- 
west one-quarter  of  section  10.  A  run,  known  as  "Big  creek," 
nearly  north  and  south,  passes  through  both  farms  to  the 
south.  Following  the  trend  of  this  creek  for  three  or  four 
miles  in  a  northwesterly  and  southeasterly  direction,  and 
about  one-half  mile  wide,  flowing  wells  are  obtained  at  a 
uniform  depth,  considering  the  elevation  of  the  surface.  The 
plaintiff  has  lived  some  time  on  his  south  80  at  about  the 
center  of  this  district,  and  several  years  ago  sunk  one  of  the 
first,  wells  near  his  house,  somewhat  above  tne  level  of  the 
creek.  Later  two  other  wells  were  sunk,  one  in  the  valley 
of  the  creek  in  the  north  80,  and  the  other  about  thirty  rods 
from  his  barn,  to  which  an  underground  pipe  was  extended 
to  a  tank  at  the  barn.  In  July,  1901,  the  defendant  Abraham 
put  down  a  three-inch  well  on  his  farm  near  the  south  line, 
close  to  the  creek,  to  which  he  dug  a  ditch,  and  allowed  the 
water  to  flow  unrestrained  through  the  creek  to  the  land  be- 
low. This  resulted  in  stopping  the  flow  of  water  from  plain- 
tiff's wells  at  his  house  and  near  the  barn.  In  pursuance  of 
a  temporary  writ  of  injunction,  the  flow  of  defendant's  well 
was  reduced  to  one-fourth  of  an  inch,  whereupon  water  again 
flowed  from  plaintiff's  well.  Upon  final  hearing  the  injunc- 
tion was  made  permanent,  and  defendant  appeals.  Affirmed. 

LADD,  J.  —  The  particular  district  within  which  flowing 
wells  may  be  obtained  at  a  depth  varying  from  one  hundred 


316  WATER  RIGHTS  AND  IRRIGATION  LAW. 

to  two  hundred  feet  is  three  or  four  miles  in  length  by  about 
one-half  mile  in  width,  following  the  direction  of  the  creek. 
Within  this  area  there  are  at  least  eleven  wells  which  are  now 
or  have  been  flowing  above  the  earth's  surface.  That  of 
plaintiff,  near  his  barn,  is  one  hundred  and  fifty-two  feet 
deep.  The  wrell  sunk  by  defendant  is  only  one  hundred  and 
seven  feet  deep,  but  on  ground  about  as  much  lower  as  the 
difference.  Its  casings  are  three  inches  in  diameter,  and  the 
flow,  when  interrupted,  has  the  effect  of  stopping  plaintiff's 
well  and  several  others.  It  is  located  near  the  south  line  of 
defendant's  land,  from  which  the  water  runs  in  the  creek, 
and,  save  that  necessary  for  about  thirty  head  of  cattle,  is 
without  benefit  to  him  or  anyone  else.  The  water  in  excess 
of  a  stream  one-fourth  inch  in  diameter,  to  which  extent  the 
district  court  directed  him  to  restrain  the  flow,  is  absolutely 
wasted,  and  so  done  without  excuse.  True,  he  pretended 
that  the  entire  flow  was  essential  to  prevent  clogging  with 
sand  or  gravel,  but  the  evidence  shows  conclusively  that  this 
was  less  likely  with  the  smallest  available  exit.  Again,  he 
pretended  to  have  in  contemplation  the  elevation  to  his  ten- 
ant's house,  across  the  eighty  acres,  up  some  forty  feet,  of 
water  for  domestic  use  by  the  operation  of  a  hydraulic  ram. 
But  the  extent  of  his  preparation  therefor  was  the  reading 
of  a  circular  from  some  manufacturing  company.  There  was 
no  proper  showing  that  the  flow  permitted  would  be  inade- 
quate for  this  purpose,  and  it  conclusively  appears  that  it 
had  nothing  to  do  with  his  insistency  upon  utterly  wasting 
the  water  his  neighbors  so  much  needed.  Indeed,  the  record 
indicates  strongly  his  object  was  to  maliciously  cut  off  the 
water  supply  of  a  well  owner  other  than  plaintiff.  In  the 
light  of  these  facts,  it  is  not  very  important  that  we  deter- 
mine whether  the  water  was  supplied  by  percolation  through 
the  soil  or  a  well-defined  subterranean  stream.  If  the  latter, 
of  course,  the  water  might  not  thus  be  diverted.  .  .  . 

But  the  presumption  obtains  that  such  waters  are  percolat- 
ing waters,  unless  shown  to  be  supplied  by  a  stream  of  known 
and  defined  channel.  .  .  .  And  it  follows  that  the  burden  of 
proof  is  upon  those  asserting  right  to  waters  below  the  sur- 
face, on  the  ground  that  they  flow  in  a  defined  and  known 
channel,  to  establish  the  existence  of  such  channel.  (Black 


BARCLAY  v.  ABRAHAM.  317 

v.  Ballymena  Commrs.,  L.  R.  17  Ir.  459;  Huber  v.  Merkel, 
supra.)  It  is  to  be  observed  that  the  mere  existence  of 
the  channel  is  not  enough;  its  location  must  be  known  or  rea- 
sonably ascertainable.  .  .  .  Surface  indications  of  a  stream 
are  discussed  in  Tampa  Waterworks  Co.  v.  Cline,  supra, 
where  surface  depressions  extended  on  either  side  of  a  spring ; 
in  Hale  v.  McLea,  53  Cal.  578 ,  where  a  line  of  bushes  usually 
found  nowhere  except  over  watercourses  extended  from  a 
spring  on  adjoining  land.  (See,  also,  Saddler  v.  Lee,  66 
Ga.  45,  42  Am.  Rep.  62;  Wheatley  v.  Baugh,  supra.  Valu- 
able note  to  Wheelock  v.  Jacobs,  67  Am.  St.  Rep.  665.)  In 
the  instant  case  surface  indications  do  not  aid  in  locating  a 
stream  below.  The  mere  fact  that  the  excessive  flow  from 
one  well  interrupted  that  of  several  others  did  not  tend  to 
point  out  the  location,  course,  or  even  existence  of  a  sub- 
terranean river  or  smaller  watercourse.  (Taylor  v.  Welch, 
6  Or.  199.)  A  similar  result  would  be  as  likely  to  occur 
when  the  supply  is  derived  from  water  filtrating  through  the 
soil  until  caught  in  a  stratum  of  sand  and  gravel  lying  be- 
tween impervious  layers  of  other  material.  (See  Huber  v. 
Merkel,  supra.)  Indeed,  the  fact  that  large  quantities  of 
sand  and  gravel  are  drawn  up  when  the  level  at  which  water 
is  found  is  reached  strongly  sustains  the  latter  view.  But 
we  need  go  no  further  than  to  say  there  is  nothing  in  the 
record  to  overcome  the  presumption  that  the  supply  of  the 
entire  district  is  percolating  water.  If  a  stream  one-half 
mile  wide,  it  could  scarcely  be.  affected  by  the  small  outlets 
afforded  by  these  wells.  If  a  number  of  narrower  streams 
flow  beneath  the  surface,  the  location  of  none  has  been  pointed 
out  nor  appears  ascertainable.  .  .  . 

This  being  true,  there  is  no  doubt  but  defendant  had  the 
right  to  make  such  beneficial  use  of  the  water  in  the  im- 
provement of  his  land  as  he  might  choose.  But  it  does  not 
follow  that  he  had  the  right  to  draw  from  this  reservoir  within 
the  earth,  wherein  nature  had  stored  water  in  large  quanti- 
ties for  beneficial  purposes,  merely  to  waste  or  aarry  out  a 
design  to  injure  those  having  equal  access  to  the  same  sup- 
ply. Decisions  to  the  effect  that  percolating  waters  are  to 
be  treated  the  same  in  law  as  the  land  in  which  found,  and 
may  be  diverted,  consumed,  or  cut  off  with  impunity,  with- 


318  WATER  RIGHTS  AND  IRRIGATION  LAW. 

out  liability  for  interfering  or  destroying  the  supply,  are 
numerous  in  this  country  and  England — too  numerous  for 
citation.  ...  In  the  last  of  these  cases  the  principle  under- 
lying the  right  to  such  waters,  and  the  reasons  upon  which  it 
rests,  were  thus  stated:  "In  the  absence  of  express  contract 
and  positive  authorized  legislation,  as  between  proprietors  of 
adjoining  lands,  the  law  recognizes  no  correlative  rights  in 
respect  to  underground  waters  percolating,  oozing,  or  filtrat- 
ing through  the  earth;  and  this  mainly  from  considerations 
of  public  policy:  (1)  Because  the  existence,  origin,  move- 
ment, and  course  of  such  waters,  and  the  causes  which  govern 
and  direct  their  movements,  are  so  secret,  occult,  and  con- 
cealed that  an  attempt  to  administer  any  set  of  legal  rules 
in  respect  to  them  would  be  involved  in  hopeless  uncertainty, 
and  would  be  therefore  practically  impossible;  (2)  because 
any  such  recognition  of  correlative  rights  would  interfere,  to 
the  material  detriment  of  the  commonwealth,  with  drainage, 
and  agriculture,  mining,  the  construction  of  highways  and 
railroads,  with  sanitary  regulations,  building,  and  general 
progress  of  improvement  in  works  of  embellishment  and  util- 
ity." An  examination  of  the  authorities,  however,  indicates 
that  they  proceed  upon  the  theory  that  the  right  thereto  re- 
lates to  the  beneficial  use  of  the  land,  and  is  connected  with 
its  enjoyment  for  the  purposes  of  agriculture,  mining,  trade, 
improvement,  and  the  like.  This  thought  is  emphasized  by 
the  dicta  in  many  decisions  to  the  effect  that  percolating 
waters  may  not  be  extracted  from  the  earth  to  the  injury  of 
others  merely  to  gratify  malice.  Thus,  in  the  leading  case 
of  Wheatley  v.  Baugh,  supra,  the  court  declared  that ' '  Neither 
the  civil  law  nor  the  common  law  permits  a  man  to  be  de- 
prived of  a  well  or  spring  or  stream  of  water  for  the  mere 
gratification  of  malice.  The  reason  is  that  water,  like  air, 
is  of  such  a  nature  that  no  one  can  have  an  exclusive  right  in 
it.  In  the  process  of  evaporation  and  condensation  it  is  sent 
in  refreshing  showers  all  over  the  earth.  In  its  descent  into 
the  ocean  it  necessarily  passes  from  the  one  to  the  other,  and 
is  intended  for  the  benefit  of  all.  The  right  of  each  is  more 
or  less  dependent  upon  that  of  his  neighbor."  .  .  . 

The  doctrine  of  correlative  rights  between  land  owners  re- 
specting the  appropriation  and  use  of  percolating  waters  has 


BARCLAY  v.  ABRAHAM.  319 

been  broadly  applied  in  New  Hampshire  (Bassett  v.  Salis- 
bury Mfg.  Co.,  43  N.  H.  569,  82  Am.  Dee.  179;  Swett  v. 
Cutts,  50  N.  H.  439,  9  Am.  Rep.  276),  where  the  court  de- 
clared that  no  good  reason  could  be  given  why  it  should  not 
be  applicable  in  all  cases  where  the  rights  of  owners  of  ad- 
joining lands  to  collect  and  use  percolating  waters  are  in 
apparent,  though  not  real,  hostility.  .  .  .  This  would  be  ex- 
tracting the  subterranean  water  from  the  adjoining  land  to 
its  injury,  without  any  counter  benefit  to  the  land  through 
which  taken,  and  presents  a  stronger  case  for  the  interference 
of  a  court  of  equity  than  Forbell  v.  City  of  New  York.  There 
the  drainage  rendered  the  adjoining  land  unfit  for  the 
growth  of  watercresses,  which  had  formerly  been  raised  upon 
it;  here  it  destroyed  the  water  supply  essential  for  its  cus- 
tomary use  and  enjoyment.  There  the  drainage  was  to  secure 
water  to  distribute  to  the  inhabitants  of  a  great  city  for 
profit;  here  the  object  was  to  turn  it  into  a  creek  to  flow  un- 
used in  any  way  down  to  another's  land  below.  The  sound- 
ness of  some  of  the  reasoning  of  the  Forbell  case  may  well  be 
doubted.  The  exertion  of  the  force  there  was  in  the  removal 
of  the  subterranean  waters  in  the  city's  land,  and  the  only 
suction  occasioned  was  by  emptying  a  cavity  into  which  the 
water  naturally  drained  from  the  surrounding  country.  It 
is  at  least  exceedingly  doubtful  whether  this  constituted  tres- 
pass. In  a  lesser  degree  this  happens  whenever  the  sinking 
of  one  well  has  the  effect  of  drying  up  another.  The  doc- 
trine of  Smith  v.  City  of  Brooklyn,  that  the  free  use  of  such 
waters  is  limited  to  the  improvement,  use,  and  enjoyment  of 
the  land  from  which  taken,  and  cannot  be  carried  away  for 
the  purposes  of  commerce  or  waste,  to  the  injury  of  the  prem- 
ises of  an  adjoining  owner,  has  the  better  reason  for  its  sup- 
port. But  we  need  not  go  this  far,  even  to  sustain  the  decree 
of  the  district  court,  as  in  the  case  at  bar  the  owner  derived 
no  benefit  from  the  sale  or  use  of  the  water.  As  said,  the 
case  is  in  principle  like  Stillwater  Water  Co.  v.  Farmer, 
supra.  The  doctrine  there  announced  is  in  harmony  with 
good  morals.  It  interferes  with  no  valuable  right  to  the  de- 
fendants. It  shields  from  destruction  property  rights  of 
great  value  belonging  to  the  plaintiff  and  others.  It  goes  no 
further  than  to  say  that  a  land  owner  may  not  collect,  drain, 


320  WATER  RIGHTS  AND  IRRIGATION  LAW. 

or  divert  waters  percolating  through  the  earth  merely  to 
carry  from  his  own  land  for  no  useful  purpose,  when  such  ac- 
tion on  his  part  will  have  the  effect  of  materially  injuring  or 
destroying  the  well  or  spring  of  another,  the  waters  of  which 
are  devoted  to  some  beneficial  use  connected  with  the  land 
where  found.  It  applies  in  principle  the  doctrine  of  correla- 
tive rights  to  the  control  of  subsurface  waters  whenever  the 
appropriation  proposed  is  unconnected  with  the  use,  enjoy- 
ment, or  improvement  of  the  land  from  which  taken. 
Affirmed. 


Percolating  Water — Diversion — Rights  of  Mexican  Grantees 
and  Pueblo  Rights. 

CITY  OF  LOS  ANGELES,  Respondent,  v.  A.  V.  POME- 
ROY  et  al.,  Appellants. 
(124  Cal.  597,  57  Pac.  585.) 

BEATTY,  C.  J.— This  is  a  proceeding  to  condemn  "all 
the  estate,  right,  title,  and  interest"  of  the  defendants  in 
and  to  a  tract  of  land  embracing  about  three  hundred  and 
fifteen  acres,  for  the  purpose  of  enabling  the  plaintiff — a 
municipal  corporation — to  construct  and  maintain  thereon 
the  "headworks"  of  its  projected  system  for  supplying 
water  to  its  inhabitants  for  private  and  municipal  purposes. 
The  defendants,  appealing  from  a  decree  of  condemnation 
and  from  an  order  overruling  their  motion  for  a  new  trial, 
not  only  allege  numerous  errors  in  the  rulings  of  the  su- 
perior court,  but  challenge  the  correctness  of  its  findings  of 
fact  in  many  important  particulars.  With  respect  to  these 
disputed  facts  it  will  be  necessary  to  state  the  various  con- 
tentions of  the  parties  in  discussing  the  particular  legal 
questions  to  which  they  give  rise,  and,  passing  them  over 
for  the  present,  we  will,  in  this  connection,  only  attempt  to 
set  forth  the  more  general  aspect  of  the  case,  as  to  which 
there  is  no  substantial  disagreement. 

The  city  of  Los  Angeles,  at  the  date  of  the  commencement 
of  this  action,  June  8,  1893,  contained  a  population  of  about 
seventy  thousand  souls,  and  covered  an  area  of  about  twenty 


CITY  OF  Los  ANGELES  v.  POMEROY.  321 

thousand  acres.  At  the  date  of  the  trial,  in  March,  1896, 
the  population  was  upward  of  seventy-five  thousand,  having 
increased  to  that  number  from  less  than  twelve  thousand  in 
1880.  This  rapid  growth  of  the  city  promises  to  continue, 
and  the  only  source  of  water  supply  for  its  inhabitants  and 
for  municipal  purposes  is  the  Los  Angeles  river,  which  flows 
through  the  city  from  north  to  south.  The  principal  source 
of  the  river  above  the  city  is  the  San  Fernando  valley.)  This 
valley,  embracing  a  watershed  of  from  four  hundred  and 
fifty  to  four  hundred  and  ninety  square  miles,  is  almost  com- 
pletely inclosed  by  considerable  ranges  of  mountains,  rising 
in  places  to  an  elevation  of  over  six  thousand  feet.  •JThe  most 
important  of  these  ranges  is  the  San  Fernando,  which  bounds 
the  interior  valley  on  the  north.  On  the  south  and  west  it  is 
bounded  by  the  Cahuenga  range,  which  at  its  northwestern 
extremity  unites  with  the  San  Fernando.-  On  the  east  the 
Verdugo  hills  are  connected  with  the  San  Fernando  range 
on  the  north,  and,  extending  toward  the  south,  leave  a  com- 
paratively narrow  outlet  to  the  valley  between  their  southern 
extremity  and  the  eastern  prolongation  of  the  Cahuenga 
range.  Through  this  outlet  at  the  southeastern  corner  of  the 
interior  basin  the  Los  Angeles  river  issues,  flowing  in  an  east- 
ern direction  parallel  and  close  to  the  northern  base  of  the 
Cahuenga  range,  until,  having  passed  that  obstruction,  it 
turns  to  the  south  and  flows  through  the  city  to  the  Pacific 
Ocean.  The  interior  of  the  San  Fernando  valley  is  a  plain 
composed  of  detritus  washed  from  the  mountain  sides,  and 
having  a  moderate  slope  from  the  San  Fernando  range  on  the 
north  toward  the  Cahuenga  range  in  the  south,  and  from  the 
west  toward  the  east.  This  portion  of  the  valley — that  is  to 
say,  the  portion  composed  of  material  not  in  place,  detritus 
washed  from  the  mountain  side — which,  for  convenience,  may 
be  called  the  valley  proper,  extends  about  twenty-four  miles 
from  east  to  west,  and  is  about  twelve  miles  wide  at  its  widest 
part,  embracing  an  area  of  about  one  hundred  and  eighty 
square  miles.  Its  material  is  composed  of  boulders,  gravel, 
sand,  and  occasional  masses  of  clay.  The  rainfall  within  the 
watershed  of  the  valley  is  variable.  When  it  is  abundant, 
and  the  loose,  porous  material  composing  the  valley  proper 
21 


322  WATER  EIGHTS  AND  IRRIGATION  LAW. 

is  thoroughly  saturated,  the  streams  issuing  from  the  rocky- 
canyons  of  the  mountains  flow  over  the  surface  to  the  outlet 
of  the  valley  and  pass  off  as  flood  waters  down  the  channel 
of  the  Los  Angeles  river.  But  this  surface  flow  does  not  con- 
tinue for  any  great  length  of  time,  and,  under  ordinary  con- 
ditions, the  mountain  streams  sink  in  the  sand  within  a 
short  distance  of  the  mouths  of  the  canyons,  and  no  water 
appears  upon  the  surface  until  it  shows  itself  again  in  the 
Los  Angeles  river,  where  it  takes  its  rise  a  short  distance 
north  of  the  Cahuenga  range  on  the  southern  side  of  the 
valley  proper. 

The  land  which  the  city  seeks  to  condemn  lies  at  the  base 
of  the  Cahuenga  range,  in  the  narrow  outlet  of  the  valley. 
It  is  almost  two  miles  in  length  from  east  to  west,  and 
averages  a  quarter  of  a  mile  in  width.  At  its  eastern  end  it 
is  about  a  mile  west  of  the  point  where  the  Verdugo  hills 
make  their  closest  approach  to  the  Cahuenga  range — the 
width  of  the  valley  proper  at  this  point  being  about  two  miles. 
Where  the  land  lies  the  width  is  from  two  and  a  half  to  three 
miles.  The  surface  of  the  river  where  it  flows  out  of  the 
land  in  question  at  its  eastern  end  has  an  elevation  above  the 
sea  level  of  about  four  hundred  and  sixty  feet,  and  is  two 
hundred  feet  higher  than  the  main  portion  of  the  city  of  Los 
Angeles.  In  ordinary  seasons,  after  the  flood  waters  have 
run  off  and  the  river  has  assumed  its  normal  condition,  the 
water  rises  to  the  surface  at  some  distance  west  of  the  land 
sought  to  be  condemned,  and  increases  rapidly  in  volume  as  it 
flows  toward  the  east.  There  is  considerable  difference  be- 
tween the  estimates  of  different  witnesses,  but  it  may  be  said 
in  general  terms  in  this  connection,  where  strict  accuracy  is 
not  important,  that  the  surface  flow  of  the  river,  where  it 
enters  the  tract  in  question,  is  about  twelve  hundred  inches, 
miner's  inches,  and  that  its  volume  is  about  doubled  by  the 
accessions  it  receives  in  passing  through  the  tract.  These 
accessions  are  of  the  character  that  would  naturally  be  ex- 
pected from  the  topography  of  the  valley  and  the  nature  of 
the  soil  under  and  adjacent  to  the  surface  stream.  The 
whole  country  on  either  side  of  the  stream  is  found  to  be 
completely  saturated  with  water — the  plane  of  saturation 
near  the  open  channel  being  slightly  higher  than  the  surface 


CITY  OP  Los  ANGELES  v.  POMEROY. 

of  the  river,  and  gradually  rising  in  proportion  to  the  dis- 
tance from  the  stream.  From  the  sides  and  bottom  of  the 
visible  stream  the  water  percolates,  or  trickles,  or  gushes, 
according  to  the  nature  of  the  soil,  whether  fine  and  com- 
paratively compact,  or  coarse  and  gravelly  and  more  loose 
and  porous. 

The  plan  of  the  city  for  utilizing  the  land  which  it  seeks 
to  condemn  is  to  drive  a  tunnel  through  it  from  east  to  west, 
a  few  feet  below  the  bed  of  the  river,  and  to  extend  filtration 
galleries  north  and  south  from  the  tunnel  in  such  number  and 
at  such  places  as  may  be  found  best  adapted  to  securing  an 
ample  supply  of  water.  The  plan  also  embraces  a  submerged 
dam  and  collecting  chambers  or  reservoirs,  but  the  main 
feature  is  the  tunnel  with  its  lateral  galleries,  from  which  the 
water,  draining  and  filtering  out  of  the  saturated  soil,  is  to 
be  delivered  to  the  main  supply  pipe  of  the  city,  and  thence 
to  its  distributing  system. 

The  principal  points  of  controversy  between  the  parties 
are:  1.  As  to  the  existence  of  a  well-defined  subterranean 
stream  by  which  the  waters,  or  a  large  portion  of  the  waters, 
resulting  from  the  rainfall  within  the  watershed  of  the  San 
Fernando  valley,  are  carried  off  through  the  pass  between  the 
Cahuenga  range  and  the  Verdugo  hills;  and  2.  As  to  the 
rights  of  the  city  of  Los  Angeles,  as  successor  to  the  Mexican 
pueblo,  in  the  waters  of  the  Los  Angeles  river. 

The  claim  of  the  plaintiff  is,  that  the  city  has  certain 
extensive  rights  in  the  stream  over  and  above  those  of  ordin- 
ary riparian  owners,  and  that  the  stream  itself  consists  not 
only  of  the  visible  surface  flow  of  the  river,  but  of  the  large 
subterranean  flow  slowly  passing  through  the  boulders,  gravel,, 
and  sand  under  and  adjacent  to  the  river. 

Both  of  these  claims  are  disputed  by  the  defendants,  and 
out  of  this  controversy  arise  most  of  the  points  to  be  con- 
sidered in  disposing  of  the  appeal.  As  to  the  rights  of  the 
city  as  successor  to  the  pueblo,  the  allegation  of  the  amended 
complaint  is,  that  ever  since  its  organization  the  city  has  been 
the  owner  in  fee  simple  of  the  exclusive  right  to  the  use  of 
all  the  waters  of  said  river,  from  its  source  to  the  southern 
boundary  of  the  city,  in  trust  for  the  public  purposes  of  sup- 
plying the  inhabitants  of  said  city  with  water  for  domestic 


324  [WATER  EIGHTS  AND  IRRIGATION  LAW. 

uses,  and  of  supplying  water  for  the  irrigation  of  the  irri- 
gable lands  embraced  in  the  four  square  leagues  of  the 
pueblo,  and  for  other  municipal  uses.  And  it  is  alleged  that 
the  defendants  own  the  land  sought  to  be  condemned,  subject 
to  this  right  of  the  city  to  the  waters  of  the  stream.  These  is 
allegations  are  denied  by  the  defendants,  and,  in  view  of  the 
issue  thus  made,  the  defendants,  before  the  commencement  of 
the  trial,  moved  the  court  to  stay  the  proceedings  in  the 
action  until  the  determination  of  certain  other  suits  then 
pending  between  the  city  and  the  defendants,  in  which  the 
question  as  to  their  respective  rights  in  the  waters  of  the 
river  was  involved.  The  defendants  also  moved  to  strike  out 
the  allegations  of  the  complaint  setting  up  the  claim  of  the  . 
city  to  the  waters  of  the  stream,  contending  that  the  city 
could  not  maintain  a  proceeding  to  condemn  lands  while 
asserting  title  in  itself  to  that  which  constituted  their  chief 
value.  These  motions  were  denied  by  the  superior  court,  and 
the  exceptions  to  the  rulings  thereon  give  rise  to  the  first 
point  discussed  in  the  briefs.  Before  taking  up  this  point, 
however,  it  may  be  well  to  state  the  manner  in  which,  by 
consent  of  the  parties,  the  case  was  tried.  It  was  stipulated 
that  the  court,  sitting  without  a  jury,  should  hear  the  evi- 
dence of  the  parties  for  the  purpose  of  determining:  1. 
Whether  the  use  to  which  the  property  was  to  be  applied  was 
one  authorized  by  law  and  the  taking  necessary;  2.  Whether 
the  proposed  plan  was  compatible  with  the  greatest  public 
good  and  least  private  injury;  and  3.  What  was  the  nature 
and  extent  of  the  plaintiff's  interest  in  the  waters  of  the 
river.  And  these  things  being  determined,  that  a  jury 
should  be  impaneled  to  assess  the  amount  of  compensation 
to  be  awarded  to  the  defendants  for  the  interest  condemned. 
In  accordance  with  this  stipulation  the  court  heard  evidence 
bearing  upon  the  three  points  mentioned,  and  at  its  close 
called  a  jury,  before  whom  the  trial  proceeded  upon  the 
question  of  damages.  During  the  progress  of  the  jury  trial 
the  court  made  an  oral  announcement  of  its  conclusions  upon 
the  issues  submitted  to  its  decision,  but  no  formal  findings 
were  filed  until  after  the  jury  rendered  their  verdict.  The 
court,  however,  in  charging  the  jury  instructed  them  as  to 
those  matters  so  far  as  it  deemed  such  instructions  necessary. 


CITY  OP  Los  ANGELES  v.  POMEROY.  325 

The  consent  of  defendants  to  this  mode  of  trying  the  */ 
various  issues  in  the  ease  was,  however,  given  with  an  express 
reservation  of  their  objection  that  the  court  had  no  jurisdic- 
tion in  this  proceeding  to  try  any  question  of  title  in  the 
plaintiff  to  the  waters  of  the  river,  and  they  now  contend 
that  the  superior  court  erred  in  refusing  to  stay  the  trial 
of  the  cause  until  the  respective  rights  of  the  parties  had 
been  determined  in  other  pending  suits;  and  this  upon  the 
ground  that  a  proceeding  for  condemnation  is  not  one  in 
which  adverse  claims  of  title  can  be  adjudicated. 

This  contention  is  rested  upon  the  proposition  that  the  pro- 
ceeding, being  statutory  and  special,  must  be  strictly  pur- 
sued, and,  since  the  statute  makes  no  express  provision  for 
litigating  a  claim  by  the  plaintiff  to  an  interest  in  the  prop- 
erty sought  to  be  condemned,  the  court  has  no  power  to 
determine  such  claim,  at  least  when  contested  by  the  defend- 
ant. But  we  think  the  statute  does  not  require  so  strict  a 
construction.  The  superior  court  is  invested  with  a  general 
jurisdiction  of  all  special  proceedings  not  otherwise  provided 
for;  and  in  conducting  such  special  proceedings  exercises  its 
usual  and  ordinary  powers  in  disposing  of  the  issues  which 
are  necessarily  involved.  Among  the  matters  which  may  be  I— 
involved  in  any  proceeding  to  condemn  private  property  for 
public  use  are  adverse  claims  to  the  compensation  to  be 
awarded.  In  such  proceedings  the  complaint  must  contain 
the  names  of  all  owners  and  claimants  of  the  property,  if 
known  (Code  Civ.  Proc.,  sec.  1244),  and  all  persons  claiming 
any  interest  in  the  property,  or  damages,  though  not  named, 
may  appear  and  defend.  (Code  Civ.  Proc.,  sec.  1246.)  And 
the  court  has  power  "to  hear  and  determine  all  adverse  and 
conflicting  claims  to  the  property  sought  to  be  condemned, 
and  to  the  damages  therefor."  (Code  Civ.  Proc.,  sec.  1247.) 

These  positions  are,  of  course,  conceded  by  the  appel- 
lants, but  they  contend  that  the  right  to  set  up  and  litigate 
adverse  claims  is  confined  by  the  very  words  of  the  statute 
to  those  who  are  defendants.  It  is  true  the  express  provision 
above  quoted  from  (Code  Civ.  Proc.,  sec:  1247)  applies  only 
to  the  conflicting  claims  of  those  who  are  made,  or  who  make 
themselves,  defendants  in  the  proceeding,  but  this  is.  only 
because  the  interest  of  the  defendants  alone  are  to  be  con- 


326  WATEII  RIGHTS  AND  IRRIGATION  LAW. 

demned.  The  statute  does  not  contemplate  the  condemnation 
of  an  interest  which  the  plaintiff  already  has,  or  the  payment' 
of  any  damages  except  to  compensate  those  whose  property 
is  to  be  taken  away;  and  therefore,  the  plaintiff  can  have  no 
concern  in  the  determination  of  "adverse  or  conflicting 
claims  to  the  property  sought  to  be  condemned  and  the  dam- 
ages therefor."  But,  although  this  provision  of  the  statute 
has  no  direct  bearing  on  the  question  here  presented,  it  con- 
tains an  express  legislative  recognition  of  the  entire  compe- 
tency of  the  court  to  try  and  determine  adverse  claims  to  the 
property  in  a  proceeding  to  condemn. 

The  question,  however,  which  we  have  to  decide  is  this:*-x 
Can  a  plaintiff  who  is  already  the  owner  of  an  interest  in 
land  secure  the  condemnation  of  outstanding  interest  in  a 
case  which  in  other  respects  is  a  proper  one  for  condemna- 
tion? 

This  is  an  important  question,  for  it  is  apparent  that  such 
cases  may  frequently  arise.  Private  property  suitable  and 
necessary  for  some  lawful  public  use  is  often  owned  in  shares 
by  different  persons,  or  subject  to  liens  or  servitudes,  and  the 
owner  of  a  share,  or  an  easement,  or  holder  of  a  lien,  may  be 
the  proper  agent  of  the  state  for  the  exercise  of  its  power  of 
eminent  domain.  In  such  case,  it  is  certainly  desirable  that 
the  law  should  supply  a  convenient  procedure  by  which  he 
could  secure  exclusive  control  and  ownership  of  the  property 
upon  payment  of  the  value  of  the  outstanding  share,  or  of 
the  whole,  less  the  amount  secured  by  lien,  or  as  diminished 
by  the  existing  servitudes.  The  defendants  do  not  seem  to 
contest  the  proposition  that  our  statute  is  adequate  to  the 
exigencies  of  such  a  case,  but  they  contend  that,  (when  the  w 
interest  asserted  by  the  plaintiff  is  disputed,  the  proceeding 
to  condemn  must  be  held  in  suspense  until,  in  a  separate 
action,  the  respective  interests  of  the  parties  are  judicially 
determined.  But  why  the  necessity  of  such  circuity  of 
action?  Both  branches  of  the  controversy  would  in  any 
event  be  tried  and  determined  in  the  same  forum,  and  there 
seems  to  be  no  good,  reason  why  they  may  not  be  litigated  in 
one  action.  Even  if  the  adverse  claim  of  the  plaintiff  were 
first  determined  in  an  action  to  quiet  title,  its  subsequent 
assertion  in  a  proceeding  to  condemn — whether  admitted  or 


CITY  OF  Los  ANGELES  v.  POMEROY.  327 

contested — would  be  just  as  foreign  to  any  express  provision 
of  the  statute  as  if  his  right  had  never  been  determined.  It 
follows,  therefore,  that  the  argument  that  the  court  can  do 
nothing  in  these  proceedings,  except  that  which  is  in  terms 
authorized  by  the  statute,  proves  too  much.  It  would  not 
only  debar  the  plaintiff  from  proceeding  before  his  title  had 
been  adjudicated,  but  would  debar  him  always. 

We  see  no  reason  for  holding  that  a  plaintiff  is  debarred* 
from  proceeding  in  such  a  case,  nor  can  we  see  that  the  trial 
of  all  the  issues  in  one  action  is  attended  with  any  special  in- 
convenience. In  whatever  mode  the  plaintiff's  interest  in  the 
property  might  be  determined — whether  in  a  separate  action, 
or  preliminarily  in  the  proceeding  to  condemn,  as  was  done 
in  this  case — the  same  consequences  would  follow;  that  is  to 
say,  the  jury  called  to  try  the  question  of  damages  would 
require  instructions  as  to  the  nature  and  quantity  of  out- 
standing interest  remaining  in  the  defendants,  upon  which  to 
base  an  estimate  of  the  damages,  and  the  defendant  would 
have  the  same  remedy  in  case  of  erroneous  instructions  in 
either  case.  Considerations  of  convenience,  therefore,  do  not 
seem  to  sustain  the  contention  of  appellant  on  this  point. 
On  the  contrary,  it  would  seem  that  very  great  public  incon- 
venience might  ensue  if  a  plaintiff,  asserting  an  interest  in 
property  which  he  seeks  to  subject  to  a  public  use,  were 
obliged  in  every  instance  to  prosecute  to  final  judgment  an 
action  to  quiet  title  before  he  could  proceed  to  condemn.  And 
if  he  can  commence  the  proceeding  to  condemn  before  his 
interest  has  been  adjudicated,  it  does  not  seem  that  a  denial 
of  his  interest  should  stop  the  proceeding,  for  it  is  in  the 
same  court  in  which  that  issue  must  be  tried  in  any  event, 
and  to  try  it  when  it  is  first  made  is  only  to  do  that  which 
is  necessarily  incident  to  a  proceeding  clearly  authorized,  and 
express  authority  to  do  anything  always  implies  the  power  to 
do  that  which  is  necessarily  incidental. 

If  the  views  above  expressed  are  in  themselves  reasonable,^ 
and  if  they  embody  a  proper  construction  of  the  statute,  they 
ought  to  prevail,  even  if  opposed  to  previous  decisions  of 
this  court;  for  no  vested  right  can  be  violated  or  impaired 
by  freeing  a  statutory  remedy  from  inconvenient  and  burden- 
some restrictions  imposed  by  a  mistaken  construction  of  the 


328  WATER  RIGHTS  AND  IRRIGATION  LAW. 

law.  We  are  satisfied,  however,  that  there  is  nothing  decided 
in  any  of  the  cases  referred  to  by  counsel  for  appellants 
which  is  at  all  inconsistent  with  our  conclusions.  .  .  . 

4.  The  next  contention  of  appellants  is,  that  there  is  no 
authority  in  law  for  the  condemnation  of  these  three  hundred 
and  fifteen  acres  in  fee  simple  for  the  purposes  for  which 
the  property  is  sought  to  be  condemned. 

An  ordinance  of  the  city  of  Los  Angeles,  approved  on  the 
eighth  day  of  June,  1893,  is  attached  to  and  made  a  part  of 
the  complaint.  By  its  first  section  it  ordained  that  it  was 
necessary  that  the  land  in  controversy  "be  acquired  by  con- 
demnation for  the  purposes  of  constructing  headworks  for  a 
water  system."  It  will  be  seen  that  the  purpose  to  which 
the  land  was  to  be  devoted  was  not  very  definitely  stated  in 
the  ordinance,  but  the  amended  complaint  filed  herein  is 
somewhat  more  explicit  and  shows  with  reasonable  clearness 
what  the  plan  of  the  city  is.  The  land  is  found  to  be  satu- 
rated with  water  to  within  a  few  feet  of  the  surface.  It  is 
proposed  to  construct  a  subsurface  dam  at  the  lower  end  of 
the  tract.  A  subsurface  dam,  of  course,  would  not  have  the 
effect  of  flooding  the  surface  permanently,  but  it  would  per- 
manently raise  the  plane  of  saturation.  This  being  done,  it 
is  next  proposed  to  tap  this  heavily  saturated  bed  of  sand  and 
gravel  by  means  of  a  tunnel  connected  with  lateral  galleries 
through  which  the  water  will  be  drained  off  and  conducted 
to  the  supply  pipes.  In  other  words,  the  land  is  to  be  used 
as  a  reservoir,  such  as  essentially  it  is,  and  none  the  less  so 
because  the  water  does  not  rise  and  stand  above  the  surface. 
The  evidence  in  the  case  shows  that  from  one-fifth  to  one- 
third  of  the  entire  bulk  of  the  material  filling  the  valley 
below  the  plane  of  saturation  is  water.  (The  land  in  its 
natural  state,  therefore,  is  a  reservoir,  and  a  subsurface  dam 
is  to  be  constructed  in  order  to  make  it  better  serve  the  pur- 
poses of  a  reservoir.  Such  being  the  use  to  which  it  is  to  be 
devoted,  the  fee  simple  may  be  taken.  (Code  Civ.  Proc.,  sec. 
1239;  Stats.  1891,  p.  102.) 

As  to  the  necessity  of  taking  the  whole  three  hundred  and 
fifteen  acres  the  evidence  is  conflicting,  and  the  finding  of  the 
superior  court  cannot  be  disturbed.  The  evidence  introduced 
by  the  plaintiff  showed  that,  in  view  of  the  rapid  increase  of 


CITY  OP  Los  ANGELES  v.  POMEROY.  329 

the  population  of  the  city,  the  probable  necessity  of  extend- 
ing additional  lateral  galleries  to  obtain  a  larger  flow  of 
water,  and  to  conform  to  changes  in  the  channel  of  the  sur- 
face stream,  and  the  necessity  of  excluding  livestock  from  the 
land  to  prevent  contamination  of  the  water,  it  was  necessary 
that  the  city  should  have  the  exclusive  ownership  and  control 
of  the  whole  tract. 

5.  Appellants  next  contend  that  the  amount  awarded  by 
the  jury  as  compensation  for  the  tract  condemned  was  not 
justified  by  the  evidence.  The  jury  found  that  the  value  of 
the  defendant's  interest  in  the  three  hundred  and  fifteen  acre 
tract  was  twenty-three  thousand  dollars,  and  that  their  re- 
maining land  would  be  damaged  two  thousand  dollars  by  the 
severance  of  the  smaller  parcel.  ^Appellants  concede  that  the 
evidence  sustains  this  verdict  if  the  value  of  the  land  for 
agricultural  purposes  is  alone  to  be  considered,  but  they  claim 
that  it  is  of  enormously  greater  value  by  reason  of  the  great 
quantity  of  water  percolating  in  the  soil,  which,  they  contend, 
they  have  a  right  to  collect  and  convey  away  to  other  lands 
for  sale. 

This  claim  of  ownership  of  percolating  waters  is  met  by 
claim  on  the  part  of  the  plaintiff  that  what  the  defendants 
call  percolating  waters  are  as  truly  a  part  of  the  Los  Angeles 
river  as  the  visible  surface  stream,  and  out  of  this  conten- 
tion arise  the  most  important  questions  in  the  case. 

There  seems  to  be  no  substantial  conflict  in  the  evidence 
and  no  radical  difference  between  the  parties  as  to  the  charac- 
ter of  the  subsurface  flow  in  the  tract  condemned.  It  is  agreed 
that  all  the  waters  of  the  San  Fernando  valley,  except  what 
is  lost  by  evaporation  or  consumed  in  plant  life,  flow  out 
through  the  narrow  pass  between  the  eastern  extremity  of  the 
Cahuenga  range  and  the  Verdugo  hills,  either  on  or  beneath 
the  surface,  and  there  is  abundant  testimony  to  warrant  the 
conclusion  that  at  ordinary  stages  of  the  river  the  water  flow- 
ing on  the  surface  and  that  which  is  beneath  the  surface  are 
in  intimate  contact  and  moving  in  the  same  direction.  The 
land  condemned  is  situated  a  short  distance  west  of  the 
narrow  outlet  of  the  valley,  but  the  conditions,  though  differ- 
ing slightly  in  degree,  are  substantially  the  same.  The  val- 
ley is  somewhat  wider,  but  there  also  the  water  on  the  surface 


330  WATER  RIGHTS  AND  IRRIGATION  LAW. 

and  that  beneath  the  surface  are  in  contact  and  all  flowing 
in  the  direction  of  the  outlet — on  the  surface  at  the  rate  of 
two  or  three  feet  per  second,  underground  at  an  estimated 
rate  of  from  fourteen  to  seventeen  miles  per  annum.  It 
appears,  also,  as  stated  above,  that  the  Los  Angeles  river  first 
appears  as  a  surface  stream  a  few  miles  west  of  the  tract 
condemned,  and  gradually  increases  in  volume  as  it  flows  .to 
the  east.  The  fact  of  this  gradual  increase  in  the  surface 
flow  of  the  river,  taken  in  connection  with  the  other  facts 
above  detailed,  would  seem  to  warrant  the  inference  that  the 
waters  of  the  San  Fernando  valley,  in  seeking  an  outlet  to  the 
ocean,  flow  under  the  surface  as  far  as  they  can  find  room 
to  pass  through  the  boulders,  sand,  and  gravel  which  fill 
the  space  between  the  hills  on  either  side,  and  gradually  rise 
above  the  surface  as  the  valley  narrows  and  leaves  less  and 
less  room  for  passage  underneath.  Much  the  larger  por- 
tion of  an  extremely  bulky  record  is  filled  with  the  evidence 
of  expert  witnesses  in  regard  to  the  topography  of  the  San 
Fernando  valley,  the  material  composing  the  valley  proper, 
the  amount  of  rainfall,  measurements  of  surface  flow,  and  a 
great  variety  of  matters  bearing  upon  this  question  of  a  sub- 
terranean stream.  A  careful  study  of  this  testimony,  which, 
though  conflicting  upon  many  important  points,  is  in  refer- 
ence to  the  larger  and  more  general  aspects  of  the  case  quite 
harmonious,  convinces  us  that  it  is  sufficient  to  sustain  a  find- 
ing in  favor  of  the  existence  of  a  subterranean  stream  if  the 
law  with  respect  to  subterranean  streams  was  correctly  laid 
down  in  the  charge  of  the  court  to  the  jury.  There  can  be  v 
little  doubt,  we  think,  that  the  jury,  under  the  instructions  of 
the  court,  found  that  the  subsurface  flow  in  those  lands  was 
a  part  of  the  Los  Angeles  river  and  governed  by  the  law  of 
riparian  ownership,  or  by  a  pueblo  right  still  more  favorable 
to  the  plaintiff.  If  this  was  the  finding,  and  if  it  was  made 
under  correct  instructions,  it  cannot  be  said  that  the  award 
of  compensation  is  unsustained  by  the  evidence,  for,  aside 
from  the  water  flowing  in  the  subterranean  portion  of  the 
stream  as  defined  by  the  instructions,  there  is  no  evidence  to 
prove  the  existence  of  any  considerable  quantity  of  perco- 
lating water  in  the  tract  condemned,  and  the  same  evidence 
which  shows  an  inconsiderable  quantity  of  such  water  tends 


CITY  OF  Los  ANGELES  v.  POMEROY.  331 

strongly  to  prove  that  it  could  all  be  intercepted  or  drained 
by  the  owners  of  the  adjoining  lands  before  reaching  the  land 
taken.  That  is  to  say,  if  the  defendants  have  the  right  to 
tunnel  or  trench  their  lands  below  the  plane  of  saturation  for 
the  purpose  of  draining  off  water  which  has  not  yet  reached 
the  surface,  or  subsurface,  stream,  their  neighbors  on  the 
north  have  the  same  right,  and,  since  only  a  very  small  por- 
tion of  the  three  hundred  and  fifteen  acre  tract  is  higher  than 
the  bed  of  the  stream,  the  percolating  waters  which  they 
could  drain  without  interference  with  the  stream  would  be 
too  inconsiderable  in  amount,  and  their  right  too  precarious 
to  add  materially  to  the  value  of  the  land.  Our  conclusion^ 
on  this  point  is  that  the  verdict  must  stand  if  the  jury  were 
correctly  instructed,  and  this  brings  us  to  the  consideration 
of  the  most  important  questions  involved  in  the  case. 

6.  A  great  many  exceptions  were  taken  to  different  in- 
structions given  by  the  court,  and  it  is  now  insisted  by  appel- 
lants that  the  entire  charge  was  in  substance  erroneous,  and 
that  the  court  erred  in  refusing  to  give  the  instructions  re- 
quested by  them  because  they  presented  the  law  correctly, 
while  the  instructions  actually  given  did  not  present  it  cor- 
rectly. In  view  of  the  great  number  of  exceptions  to  the 
charge  on  account  not  only  of  what  it  contains  but  of  what 
it  does  not  contain,  there  seems  to  be  no  more  convenient 
method  of  presenting  the  points  to  be  considered  in  this  con- 
nection than  by  quoting  very  extensively  from  the  record. 

The  court  charged  the  jury  as  follows:  .  .  . 

"IX.  A  riparian  proprietor  is  not  entitled  to  convert  (for 
any  purpose  except  for  purposes  for  which  he  is  entitled  to 
make  use  of,  water  on  his  riparian  lands  as  specified  in  these 
instructions)  any  portion  of  the  waters  of  a  watercourse,  or 
stream,  whether  surface  or  subterranean;  and  he  cannot  by 
any  indirect  means  make  such  diversion  where  he  would  not 
have  been  authorized  to  do  so  directly. 

"Therefore,  a  riparian  proprietor  cannot,  by  sinking  tun- 
nels or  making  other  excavations  under  the  sides  or  under- 
neath the  bed  of  suoh  watercourse,  draw  away  for  use  on 
nonriparian  lands  any  of  the  waters  flowing  in  such  water- 
course, although  said  excavations  may  not  directly  touch  said 
stream;  if  for  instance,  the  water  of  such  stream  percolates 


332  WATER  RIGHTS  AND  IRRIGATION  LAW. 

into  the  banks  or  bed  thereof  to  a  considerable  but  limited 
distance,  and  such  percolating  water  is  stationary,  or  has 
very  little  motion,  said  riparian  proprietor  would  have  no 
right  to  make  an  excavation  so  as  to  draw  off  said  percolat- 
ing water,  if  the  effect  would  be  to  cause  any  of  the  running 
waters  of  said  stream  to  leave  the  same  in  order  to  fill  up  the 
voids  left  in  the  banks  or  bed  from  which  said  percolating 
waters  were  drawn  by  such  excavation,  any  more  than  if 
said  excavation  were  made  so  as  to  tap  said  stream  directly. 

"X.  The  mere  fact  that  some  of  the  subterranean  water 
forming  part  of  the  stream  on  the  lands  sought  to  be  con- 
demned may  be  lost  before  reaching  the  point  where  the  same 
would  have  gone  into  and  made  up  part  of  the  surface  or 
subterranean  stream  of  the  Los  Angeles  river,  would  not  give 
the  defendants  the  right  to  divert  an  amount  of  said  subter- 
ranean waters  in  said  lands  equal  to  or  less  than  the  amount 
so  lost,  if  such  diversion  would  have  the  effect  of  diminish- 
ing the  waters,  surface  or  subterranean,  of  the  said  river  at 
any  point  above  the  south  line  of  the  pueblo  lands  of  the  city 
of  Los  Angeles.  .  .  . 

"XII.  In  addition  to  these  rights  and  benefits  arising 
from  the  flow  of  the  river  through  this  land,  the  defendants 
are  the  absolute  owners  of  all  such  water  as  may  be  present 
in  the  soil  of  this  land  and  which  does  not  constitute  a  part 
of  the  water  of  the  river.  This  is  usually  called  percolating 
water.  There  is,  however,  no  magic  in  the  word  'percolat- 
ing,' and  the  fact  that  any  witness  may  apply  that  word  or 
refuse  to  apply  it  to  any  particular  class  of  waters  of  which 
he  may  speak  is  not  conclusive  of  the  question  whether  or  not 
such  water  does  or  does  not  form  part  of  the  river.  That 
question  is  to  be  determined  by  you  from  a  consideration  of 
of  the  facts  proven.  The  right  and  ownership  of  the  defend- 
ants in  this  class  of  waters  is  distinct  from  and  much  greater 
than  their  right  to  the  waters  of  the  stream.  As  to  the  waters 
of  the  stream,  they  have  a  right  only  to  the  use  of  it  on  this 
land  and  they  do  not  own  its  corpus,  or  its  body,  or  the  very 
water  itself,  and  they  have  no  right  to  take  it  away  from  the 
land  and  use  it  on  other  lands,  or  to  sell  or  dispose  of  it  for  use 
on  other  lands  or  at  other  placas.  But  as  to  this  other  water, 
if  any  there  be  in  this  land,  not  a  part  of  the  stream,  they 


CITY  OF  Los  ANGELES  v.  PoiiEROY.  333 

are  the  absolute  owners  of  it,  to  the  same  extent  and  as  fully 
as  they  own  the  soil,  or  the  rocks,  or  timber  on  the  land. 
Therefore,  if,  by  any  means,  they  can  separate  this  water 
from  the  land,  they  have  an  absolute  right  to  the  water  thus 
separated,  and  may  conduct  it  away  and  sell  or  dispose  of  it 
anywhere  as  they  see  fit,  subject  only  to  the  limitation  that 
they  may  not  excavate  or  do  anything  on  the  land  for  the 
mere  purpose  of  intercepting  such  water  and  preventing  it 
from  flowing  into  the  stream  or  watercourse  on  the  land  of 
another,  and  without  intending  to  make  any  beneficial  use 
of  it  themselves.  Whatever  additional  market  value  this  land 
may  have  had  by  reason  of  the  presence  therein  of  water  of 
this  class,  or  by  reason  of  the  feasibility  of  separating  it  from 
the  land,  or  of  using  it  on  the  land,  or  of  conducting  it  to 
some  other  place  for  use  or  sale,  or  of  the  great  market  value 
of  such  water  for  such  purposes,  or  by  reason  of  all  these 
things  combined,  or  by  reason  of  any  other  lawful  benefit  or 
advantage  which  this  water  gives,  this  additional  market 
value  inures  to  the  benefit  of  the  defendants  and  is  a  part  of 
the  compensation  to  which  they  are  entitled  in  this  case  as  the 
value  of  the  land  to  be  condemned.  .  .  . 

"XXIII.  If  the  jury  believe  from  the  evidence  that  the 
subterranean  waters  in  the  land  sought  to  be  condemned  are 
percolating  without  any  definite  channel,  and  that  the  same 
are  not  a  subterranean  watercourse  or  stream,  and  if  they 
believe  that  such  waters  come  on  to  said  lands  from  the  lands 
of  others  above,  or  pass  from  the  lands  sought  to  be  con- 
demned down  to  the  lands  of  others  lying  below,  and  that  such 
upper  proprietors  could,  by  the  construction  of  tunnels  or 
other  wTorks,  cut  off  or  divert  said  waters,  or  some  part  thereof, 
from  the  lands  sought  to  be  condemned,  or  that  such  lower 
proprietors  could  construct  tunnels  or  other  works  on  the 
lands  lying  below  the  lands  sought  to  be  condemned,  which 
would  have  the  effect  of  draining  or  depriving  the  lands 
sought  to  be  condemned  of  their  subterranean  waters,  to  the 
extent  that  the  owners  of  the  land  sought  to  be  condemned 
could  not  make  a  practical  use  thereof,  or  of  some  part  of  said 
waters,  then  the  jury  are  instructed  that  such  upper  and 
lower  proprietors  would  have  the  same  rights  so  to  appro- 
priate said  waters  on  their  lands  as  the  defendants  would 


334  WATER  RIGHTS  AND  IRRIGATION  LAW. 

have  on  the  lands  sought  to  be  condemned,  and  the  jury  must 
take  those  facts  into  consideration  so  far  as  they  diminish  or 
destroy  the  value  of  the  rights  of  the  defendants  to  said 
waters,  or  such  portion  thereof  as  could  be  so  diverted  or 
drained  so  as  to  deprive  defendants  of  the  practical  use 
thereof." 

We  will  now  take  up  the  specific  objections  of  the  defend- 
ants to  these  instructions  in  the  order  in  which  they  are 
stated.  The  first  is  to  instruction  No.  10.  It  might  be  suffi- 
cient answer  to  the  objection  now  urged  in  the  argument  to 
say  that  it  is  not  one  of  the  objections  stated  at  the  trial  and 
specified  in  the  exception  then  taken.  But,  waiving  that  point, 
it  seems  clear  to  us  that  unless  the  entire  theory  of  the  in- 
struction in  regard  to  underground  streams  and  percolating 
waters  is  wrong,  this  instruction  is  right,  or  at  least  is  harm- 
less. (The  fault  found  with  it  is  that  it  denies  the  right  of v 
defendants  to  divert  any  part  of  the  underflow  on  their  lands, 
whether  the  water  diverted  would  ever  reach  the  surface 
stream  or  not.  But  the  instruction  is  limited  to  subterranean  - 
water  which  is  a  part  of  the  stream  (as  in  other  instructions 
defined),  and  if  it  is  a  part  of  the  stream  it  cannot  be  di- 
verted, whether  it  would  come  to  the  surface  or  not.  It  be- 
'  longs  to  the  stream  and  must  flow  on  to  the  lower  riparian 
proprietor.  His  right  to  the  subsurface  portion  of  the  stream 
is  identical  with  his  right  to  the  surface  flow,  and  is  entitled 
to  the  same  protection.  As  to  the  criticism  that  the  instruc- 
tion is  meaningless,  it  must  be  admitted  that  it  does  not 
clearly  explain  itself.  But  the  respondent  points  out  that 
it  refers  to  a  claim  made  by  defendants  that  a  large  portion 
of  the  subsurface  flow  was  somehow  lost  from  the  stream  be- 
tween their  land  and  the  city,  and  therefore  they  could  divert 
an  equal  or  smaller  quantity  without  injury.  If  such  a  claim 
was  made,  the  instruction  was  perhaps  necessary — if  it  was 
not  made,  the  instruction  was  harmless. 

Counsel  next  criticise  instruction  No.  12,  complaining  that 
it  confounds  percolating  waters  and  waters  of  the  stream  in 
such  a  manner  as  to  render  the  court's  view  of  the  law  ab- 
solutely unascertainable,  and  to  give  the  jury  to  understand 
that,  notwithstanding  water  may  be  percolating,  it  may  still 
be  a  part  of  the  stream.  We  think  the  meaning  of  this  in- 


CITY  OF  Los  ANGELES  v.  POMEROY.  335 

struction  is  entirely  clear,  and  that  the  only  question  is  as 
to  its  soundness  in  point  of  law.  The  court  certainly  did  in- 
tend in  this  instruction,  and  in  many  others,  to  tell  the  jury 
that  water  passing  through  the  voids  of  any  loose  permeable 
material  filling  or  partially  obstructing  the  channel  of  a 
stream  is  still  water  of  the  stream.  If  it  all  sinks  beneath  the 
surface  the  whole  stream  is  subterranean ;  if  a  part  sinks  and 
the  remainder  flows  upon  the  surface,  that  which  is  invisible 
is  as  much  a  part  of  the  stream  as  the  surface  flow.  ;  The  dif- 
ference between  counsel  and  the  superior  court  at  this  point 
seems  to  be  that  to  them  all  water  passing  through  sand, 
gravel,  and  boulders  is  percolating  water,  and  the  mere  fact 
of  percolation  is  inconsistent  with  the  idea  of  a  stream  while 
to  the  court  there  is  no  such  inconsistency  when  the  material 
through  which  the  water  forces  itself  fills  a  well-defined  chan- 
nel with  impervious  sides  and  bed,  through  which  a  con- 
siderable body  of  water  flows  from  its  source  to  its  resting 
place.  If  this  view  of  the  court  is  correct,  the  instruction  is 
neither  erroneous  nor  obscure. 

The  quotations  made  by  counsel  from  instructions  Nos.  13, 
14,  15,  16,  17,  18,  and  their  criticisms  thereon,  are  all  di- 
rected to  the  proposition  that  the  court  understood  and  in- 
tended the  jury  to  understand  that  nothing  is  essential  to 
the  constitution  of  a  subterranean  stream  except  that  the 
general  direction  of  the  flow  of  the  water  is  discoverable. 
That  in  this  sense  the  whole  San  Fernando  valley  is  a  sub- 
terranean stream,  and  the  jury  might  as  well  have  been  in- 
structed in  terms  to  find  that  there  was  in  this  land  no 
percolating  water,  the  property  of  the  defendants.  We  do  not 
think  the  instructions  referred  to,  taken  by  themselves,  nec- 
essarily bear  this  construction,  and  certainly  when  considered 
in  connection  with  those  numbered  19  and  20,  and  others,  it 
clearly  appears  that  the  court  was  not  giving,  or  intending 
to  give,  a  definition  which  would  make  the  whole  San  Fer- 
nando basin  a  subterranean  stream.  The  instructions,  taken 
altogether,  are  applicable  in  their  definition  of  a  subterranean 
stream  exclusively  to  the  comparatively  narrow  outlet  of  the 
valley  between  the  Cahuenga  range  and  the  Verdugo  hills, 
where  all  agree  that  the  entire  rainfall  of  the  valley  passes 
out,  partly  on  and  partly  beneath  the  surface,  between  the 


336  WATER  RIGHTS  AND  IRRIGATION  LAW. 

rocky  and  comparatively  impervious  mountain  sides  on  either 
hand.  It  is  true  this  pass,  on  the  surface,  is  from  one  and 
a  half  to  two  and  a  half  miles  in  width,  and  that  in  it  bor- 
ings have  been  made  over  a  hundred  feet  in  depth  before 
encountering  bedrock,  but  here  is  not  only  water  moving  in 
a  definite  direction,  but  also  sides  and  bed  to  the  channel  in 
which  it  is  moving,  and  these,  also,  are  comprehended  in  the 
court's  definition  of  a  subterranean  stream.  Another  objec- 
tion to  these  instructions,  particularly  to  number  16,  is  tkat 
they  charge  the  jury  upon  questions  of  fact.  We  cannot  see 
that  these  instructions  are  at  all  objectionable  upon  this 
ground.  What  a  subterranean  stream  must  be  in  order  to 
bring  it  within  the  law  of  riparian  rights  is  a  question  of 
law,  and  the  entire  scope  of  these  instructions  includes  noth- 
ing but  a  statement  of  the  facts  which  the  jury  must  find 
from  the  evidence  in  order  to  determine  whether  there  is  a 
subterranean  stream,  and,  if  so,  how  much  of  the  water  in 
the  land  is  part  of  that  stream.  This  is  in  nowise  a  trans- 
gression of  the  province  of  the  court.  Another  objection  to 
several  of  these  instructions  is  that  there  was  no  evidence 
upon  which  to  base  them.  We  think,  however,  that  there  is 
not  only  some  evidence,  but  very  substantial  evidence,  con- 
tained in  the  record  tending  to  prove  every  material  portion 
of  the  various  hypotheses  stated  in  the  instructions. 

Before  proceeding  to  a  consideration  of  the  numerous  ex- 
ceptions of  the  appellants  to  the  rulings  of  the  superior  court 
upon  the  instructions  requested  by  them,  it  will  be  convenient 
to  first  dispose  of  the  main  question  in  the  case,  viz.,  the  proper 
definition  of  a  subterranean  stream. 

There  is  no  dispute  between  the  parties  and  no  conflict  in 
the  authorities  as  to  the  proposition  that  subterranean  streams 
flowing  through  known  and  definite  channels  are  governed 
by  the  same  rules  that  apply  to  surface  streams.  The  case 
in  which  this  and  cognate  questions  have  been  raised  and 
decided  are  innumerable,  and  it  would  be  an  endless  task  to 
review  or  even  to  name  them.  No  case  involving  directly 
the  rights  of  parties  in  subterranean  streams  has  been  de- 
cided in  this  court,  but  the  law,  as  applicable  to  the  present 
case,  is  well  epitomized  in  section  48  of  Kinney  on  Irrigation, 
as  follows:  ^Subterranean  or  underground  watercourses  are,  * 


CITY  OP  Los  ANGELES  v.  POMEROY.  337 

as  their  names  indicate,  those  water  currents  that  flow  under 
the  surface  of  the  earth.  A  large  portion  of  the  great  plains 
and  valleys  of  the  mountainous  regions  of  the  west  is  under- 
laid by  a  stratum  of  water-bearing  sand  and  gravel,  and  fed 
by  the  water  from  the  mountain  drainage.  This  water-bear- 
ing stratum  is  of  great  thickness,  the  water  is  moving  freely 
through  it,  is  practically  inexhaustible,  and,  if  it  can  be 
brought  to  the  surface,  will  irrigate  a  large  portion  of  the 
country  overlying  it.  In  and  near  the  mountains  many 
streams  have  a  bed  which  was  originally  a  rocky  canyon,  but 
has  been  filled  up  with  boulders  and  coarse  gravel.  In  this 
debris  a  large  portion  or  all  of  the  water  sinks  from  sight, 
to  reappear  only  when  some  rocky  reef  crosses  the  channel 
and  forces  the  water  to  the  surface.  The  movement  of  this 
water  through  the  porous  gravel,  owing  to  the  declivity  of 
the  stream,  is  often  quite  rapid,  and  a  considerable  volume 
may  thus  pass  down  the  channel  hidden  from  sight. 

"These  watercourses  are  divided  into  two  distinct  classes — 
those  whose  channels  are  known  or  defined,  and  those  un- 
known and  undefined.  It  is  necessary  to  bear  this  distinc- 
tion in  mind  in  our  discussion,  as  they  are  governed  by  en- 
tirely different  principles  of  law.  And  in  this  connection  it 
will  be  well  to  say  that  the  word  'defined'  means  a  contracted 
and  bounded  channel,  though  the  course  of  the  stream  may 
be  undefined  by  human  knowledge;  and  the  word  'known' 
refers  to  knowledge  of  the  course  of  the  stream  by  reasonable 
inference.  Regarding  the  laws  governing  these  two  classes, 
it  must  be  known  that  if  underground  currents  of  water  flow 
in  well-defined  and  known  channels,  the  course  of  which  can 
be  distinctly  traced,  they  are  governed  by  the  same  rules  of 
law  that  govern  streams  flowing  upon  the  surface  of  the 
earth. 

' '  The  owner  of  land  under  which  a  stream  flows  can,  there- 
fore, maintain  an  action  for  the  diversion  of  it  if  such  di- 
version takes  place  under  the  same  circumstances  as  would 
enable  him  to  recover  if  the  stream  had  been  wholly  above 
ground.  But  for  this  purpose  the  underground  water  must 
flow  in  known  and  well-defined  channels,  so  as  to  constitute 
regular  and  constant  streams,  in  order  that  the  riparian  owner 
22 


338  WATER  RIGHTS  AND  IRRIGATION  LAW. 

or  appropriator  may  invoke  the  same  rules  as  are  applied  to 
surface  streams,  or  otherwise  the  presumption  will  be  that 
they  have  their  sources  in  the  ordinary  percolations  through 
the  soil.  This  rule  practically  disposes  of  the  second  class  of 
subterranean  waters — those  whose  channels  are  unknown  and 
undefined — although  there  are  undoubtedly  a  great  many  un- 
derground streams  whose  waters  flow  in  confined  channels 
but  whose  courses  are  not  known,  and,  following  the  above 
rule,  these  are  all  classed  with  percolating  waters. ' ' 

The  point  to  be  specially  noted  here  is  the  meaning  ascribed 
to  the  words  "defined"  and  "known."  "Defined"  means  a 
contracted  and  bounded  channel,  though  the  course  of  the 
stream  may  be  undefined  by  human  knowledge ;  and  the  word 
"known"  refers  to  knowledge  of  the  course  of  the  stream  by 
reasonable  inference. 

In  this  case  the  boundaries  of  the  channel  and  the  ex- 
istence and  course  of  the  underground  stream  were  unknown 
and  undefined  except  so  far  as  they  could  be  inferred,  but 
there  was  a  great  amount  of  evidence  from  which  a  reason- 
able inference  could  be  drawn  that  the  channel  was  bounded 
and  defined  by  the  sloping  sides  of  the  Cahuenga  and  Ver- 
dugo  hills  meeting  underground,  and  that  there  was  a  sub- 
surface flow  corresponding  with  the  surface  flow  from  west  to 
east  out  through  the  gap.  Without  any  excavation  beneath 
the  surface,  or  other  test  or  experiment,  all  this  could  be  in- 
ferred from  the  topography  of  the  country,  the  amount  of 
rainfall  and  the  gradually  augmenting  volume  of  the  surface 
stream  in  its  approach  to  the  narrowest  point  in  the  pass. 
And  the  court  was  certainly  justified  in  submitting  to  the 
jury  the  question  whether  the  subsurface  flow  was  a  part  of 
the  stream,  unless  the  mere  fact  that  it  was  forcing  its  way 
through  sand  and  gravel  and  boulders  deprived  it  of  the  char- 
acter of  a  stream. 

Upon  this  point  we  are  satisfied  that  the  view  of  the  su- 
perior court  was  the  reasonable  and  just  view  and  not  op- 
posed to  anything  that  has  ever  been  decided  in  this  court. 

This  is  in  fact  the  pioneer  case  of  its  kind,  so  far  as  this  \- 
court  is  concerned.     There  have  been  cases  here  in  which  in- 
junctions were  sought  to  prevent  owners  of  land  from  dig- 
ging or  trenching  or  tunneling  in  their  own  premises,  upon 


CITY  OF  Los  ANGELES  v.  POMEROY.  339 

the  ground  that  they  were  cutting  off  the  subterranean  sources 
of  springs  and  streams,  and  they  have  been  uniformly  de- 
cided in  accordance  with  the  accepted  doctrine  as  to  rights 
in  percolating  waters — the  doctrine  which  defendants  contend 
is  applicable  here.  Those  most  nearly  in  point  and  most  re- 
lied on  are  Hanson  v.  McCue,  43  Cal.  178 ,  Southern  Pac.  E. 
R.  Co.  v.  Dufour,  95  Cal.  615,  30  Pac.  783,  19  L.  R.  A.  92, 
and  Gould  v.  Eaton,  111  Cal.  639,  52  Am.  St.  Rep.  201,  44 
Pac.  319.  But  in  none  of  these  cases  was  there  any  evidence 
comparable  to  the  evidence  here  of  an  underground  stream. 

Gould  v.  Eaton,  supra,  comes  nearer  to  this  case  than 
either  of  the  others,  but  in  that  case  it  was  found  by  the 
lower  court  that  the  portion  of  the  water  as  to  which  there 
was  any  controversy  was  merely  feeding  the  stream  by  per- 
colation. .  .  . 

This,  however,  is  a  matter  involved  in  another  aspect  of 
the  case,  the  present  inquiry  relating  exclusively  to  the  proper 
definition  of  a  subterranean  stream.  Upon  this  point  we 
hold  that  the  instructions  of  the  court  contain  a  sound  and 
correct  statement  of  the  law  as  it  applies  and  ought  to  ap- 
ply to  streams  of  the  character  of  the  Los  Angeles  river.  To 
hold  otherwise  would  be  destructive  of  rights  long  supposed 
to  be  certain  and  assured.  Upon  the  doctrine  contended  for 
by  defendants  the  whole  of  the  Los  Angeles  river  could  be 
diverted  from  the  city,  and  the  sole  water  supply  of  a  com- 
munity of  over  a  hundred  thousand  people  completely  cut 
off.  For  it  is  not  alone  the  defendants  who  own  water-bear- 
ing lands  in  the  San  Fernando  valley,  and  if  they  can  ab- 
stract and  convey  to  distant  points  the  water  in  the  land 
sought  to  be  condemned  others  can  do  the  same  thing.  There 
would  be  nothing  to  prevent  the  driving  of  tunnels  through 
the  Cahuenga  range  at  a  dozen  points  and  tapping  the  water 
below  the  level  of  the  surface  stream,  in  such  a  manner  that 
by  extending  filtration  galleries  in  sufficient  number  the  whole 
flow  of  the  river  could  be  abstracted.  Once  concede  that  the 
defendants  may  draw  off  the  subsurface  flow,  or  any  part 
of  it,  the  same  privilege  must  be  conceded  to  others,  and  the 
man  or  the  corporation  that  can  put  in  the  largest  tunnel  at 
the  lowest  level  will  get  the  lion's  share,  while  the  inhabitants 
of  Los  Angeles  will  get  none.  The  doctrine,  therefore,  while 


V 

340  WATER  EIGHTS  AND  IRRIGATION  LAW. 

ruinous  to  those  who  have  built  up  a  populous  and  prosper- 
ous city  upon  faith  that  they  were  secure  of  a  supply  of 
water  for  domestic  and  municipal  purposes,  would  afford  no 
security  to  the  defendants  or  to  anyone  in  their  situation,  for 
what  they  could  take  from  the  city  others  could  take  from 
them. 

We  come  now  to  consider  the  instructions  asked  by  defend- 
ants and  refused  by  the  court.  .  .  . 

It  is  still  more  strongly  insisted  that  the  court  erred  in  re- 
fusing instructions  12,  13  and  14,  requested  by  defendants, 
which  read  as  follows: 

"XII.  The  rights  of  the  ancient  pueblo  of  Los  Angeles, 
whatever  they  may  have  been,  were  not  attempted  to  be 
granted  by  the  legislature  to  the  city  of  Los  Angeles,  except 
to  the  extent  of  four  square  miles,  and  could  not,  under  any 
circumstances,  have  extended  beyond  four  square  leagues. 

"XIII.  The  uses  to  which  the  pueblo  was  authorized  to 
apply  the  water  was  such  purposes  as  appertained  to  the 
Spanish  pueblo,  under  the  civilization  of  those  times,  and  it 
did  not  extend  to  the  cultivation  and  irrigation  of  parks,  or 
the  creation  and  maintenance  of  artificial  lakes  therein,  or 
supplying  waters  for  an  outfall  sewer. 

"XIV.  The  said  pueblo  of  Los  Angeles  had  no  paramount 
rights  to  the  use  of  the  waters  for  any  purpose,  as  against 
those  grantees  of  the  Mexican  government  under  whom  the 
defendants  here  claim;  but  the  raising  of  stock,  and  tilling 
the  land,  granted  by  the  Mexican  government  to  these  gran- 
tees, were  as  much  parts  of  the  policy  of  the  Spanish  and 
Mexican  government  as  the  founding  of  pueblos  and  promot- 
ing the  progress  of  those  towns.  And  rights  to  the  use  of 
water  by  the  grantees  of  these  ranches  for  domestic  uses,  and 
stock  and  agricultural  purposes  were  protected  by  the  laws 
and  policies  of  those  governments,  as  well  as  the  interests  of 
inhabitants  of  towns." 

In  discussing  this  branch  of  the  case  it  will  not  be  neces- 
sary to  take  up  seriatim  the  particular  exceptions  reserved 
by  the  defendants  to  the  giving  and  refusal  of  these  various 
instructions.  It  will  be  sufficient  to  consider  a  few  general 
propositions  to  which  they  give  rise. 


CITY  OF  Los  ANGELES  v.  POMEROY.  341 

The  pueblo  of  Los  Angeles  embraced  four  square  leagues 
(something  more  than  seventeen  thousand  acres)  of  land. 
The  city  of  Los  Angeles  as  originally  incorporated  embraced 
the  same  area,  but,  by  successive  amendments  to  its  charter, 
its  area  has  been  about  doubled  by  the  addition  of  lands  out- 
side of,  but  contiguous  to,  the  original  pueblo.  Within  the 
city  several  parks  have  been  laid  out  in  which  there  are  ar- 
tificial lakes  of  considerable  size,  with  lawns  and  shrubberies 
requiring  irrigation.  An  outfall  sewer  has  been  constructed, 
through  which  the  sewage  of  the  whole  city  is  carried  to  the 
Pacific  Ocean,  requiring  a  large  amount  of  water;  the  popu- 
lation of  the  city  exceeds  a  hundred  thousand  and  it  is  rap- 
idly increasing. 

The  defendants  hold  their  lands  as  successors  to  several 
Spanish  and  Mexican  grantees,  under  patents  from  the  United 
States  based  upon  the  original  grants.  They  claim  that,  even 
conceding  the  rights  of  the  pueblo  and  the  city's  succession 
of  those  rights  (a  concession  which  they  make  only  for  the 
purposes  of  the  argument  on  this  point),  they  are  still,  by 
virtue  of  their  ownership  of  the  lands  in  question,  entitled 
to  the  exercise  of  full  riparian  rights,  except  so  far,  and  so 
far  only,  as  those  rights  are  impaired  by  the  paramount 
rights  of  the  pueblo  as  they  existed  before  the  change  of  flag 
and  without  any  legislative  addition  thereto. 

This  claim,  we  think,  is  clearly  just.  The  legislature  of  ' 
California  could  grant  nothing  to  the  city  of  Los  Angeles 
which  belonged  to  others,  and  the  rights  of  the  city,  as  suc- 
cessor to  the  pueblo,  in  the  lands  of  riparian  proprietors 
holding  under  Mexican  and  Spanish  grants,  cannot  exceed 
the  rights  of  the  pueblo  itself. 

This  being  so,  the  facts  above  detailed  regarding  the  growth 
and  extension  of  the  city,  and  the  municipal  uses  to  which 
it  is  applying  the  water  drawn  from  the  river,  give  rise  to 
the  questions  upon  which  the  charge  of  the  court  and  the  in- 
structions requested  by  the  defendants  so  radically  differ. 

By  instruction  No.  4,  above  quoted,  I  understand  the  court 
to  have  charged  the  jury  that  the  defendants  had  no  right 
as  owners  of  these  lands  to  take  any  water,  from  the  river 
for  irrigation,  watering  stock,  or  even  for  domestic  purposes, 
if  by  so  doing  they  would  deprive  the  inhabitants  of  the  pres- 


342  WATER  RIGHTS  AND  IRRIGATION  LAW. 

ent  or  future  city  of  Los  Angeles  of  an  ample  supply  for 
all  domestic  and  municipal  purposes. 

I  think  this  instruction  is  erroneous.  If  the  permanent 
right  of  the  city  is  only  the  right  of  the  old  pueblo,  to  which 
it  succeeded,  I  cannot  see  how  such  right  covers  the  require- 
ments of  that  large  portion  of  the  present  city  outside  of  the 
four  leagues  constituting  the  pueblo.  The  inhabitants  of 
that  limited  territory,  to  whatever  number  they  may  increase, 
enjoy  the  full  pueblo  right,  but  beyond  that  territory  the 
right  does  not  extend.  The  city,  of  course,  has  the  power  to 
provide  water  for  all  its  inhabitants  and  for  all  public  pur- 
poses throughout  its  extended  limits,  but  if,  in  order  to  sup- 
ply the  territory  outside  of  the  pueblo  boundaries,  it  finds 
itself  compelled  to  encroach  upon  the  riparian  rights  of  land 
owners  along  the  river,  it  ought  to  pay  for  those  rights  the 
same  as  for  any  other  private  property  taken  for  public  use. 

This  is  not  the  same  proposition  involved  in  the  case  of 
the  Vernon  Irr.  Co.  v.  City  of  Los  Angeles,  106  Cal.  237,  39 
Pac.  762,  but  it  is  governed  by  the  same  principle,  and  that 
case  is  authority,  if  authority  were  required,  for  my  conclu- 
sion upon  this  point. 

As  to  the  public  purposes  for  which  the  city  may  use  water 
in  the  exercise  of  its  paramount  right,  the  question  is  not  of 
such  easy  solution.  The  view  of  the  defendants  is  set  forth 
in  the  instructions  requested  by  them,  numbered  13  and  14, 
supra.  No.  14  I  think  erroneous,  because  it  denies  to  the 
pueblo  any  paramount  right  for  any  purpose.  And  No.  13, 
I  think,  is  also  erroneous  in  limiting  too  strictly  the  purposes 
for  which  the  city,  as  successor  to  the  pueblo,  has  a  para- 
mount right  to  the  use  of  the  water  of  the  river.  It  is  certain 
that  irrigation  of  the  pueblo  lands  was  one  of  the  purposes 
for  which  the  pueblo  could  take  the  water,  and  the  fact  that 
some  of  those  lands  have  been  converted  into  ornamental 
parks  does  not  impair  the  right  to  irrigate  them.  An  out- 
fall sewer  is  something  which  I  suppose  was  never  con- 
templated in  the  foundation  of  a  Spanish  or  Mexican  pueblo, 
but  this  was  because  the  modern  system  of  water  supply  for 
domestic  purposes  and  modern  methods  of  house  drainage 
were  then  unknown.  These  improvements  have  made  an  out- 
fall sewer  necessary  for  the  health  and  convenience  of  the 


CITY  OF  Los  ANGELES  v.  POMEROY.  343 

inhabitants  of  Los  Angeles,  and  since  the  water  was  granted 
or  dedicated  as  much,  for  the  health  and  convenience  of  the 
pueblo  as  for  any  other  purpose,  and  since  it  has  been  prac- 
tically settled  that  the  pueblo  right  extends  with  the  in- 
creasing needs  of  the  inhabitants,  the  right  to  drain  the  city 
by  means  of  an  outfall  sewer,  and  to  keep  the  sewer  in  a 
state  of  efficiency  by  the  necessary  flushing,  must  be  held  to 
be  fairly  within  the  pueblo  right. 

But  the  maintenance  of  artificial  lakes,  by  which  undoubt- 
edly a  large  quantity  of  water  is  lost  through  absorption  and 
evaporation,  never  was  necessary  for  the  support  or  health 
or  convenience  of  the  inhabitants  of  the  pueblo,  however 
much  it  might  have  contributed  to  their  pleasure,  and  I  know 
of  no  principle  upon  which  their  right  to  use  the  waters  of 
a  river  for  such  a  purpose  could  have  been  deemed  paramount 
to  the  ordinary  rights  of  riparian  proprietors.  It  was  not 
only  the  policy  of  the  Spanish  and  Mexican  authorities  to 
foster  the  growth  of  the  pueblos,  but  also  to  encourage  the 
raising  of  stock  and  other  rural  industries  to  which  the  use 
of  water  for  domestic  purposes,  the  watering  of  stock,  and 
irrigation  were  essential,  and  it  is  not  to  be  believed  that 
in  the  primitive  condition  of  society  in  those  times,  when  the 
settlement  of  the  country  and  the  support  of  its  inhabitants 
was  the  primary  consideration,  the  most  favored  pueblo  would 
have  been  allowed  to  consume  in  the  maintenance  of  orna- 
mental fountains  and  artificial  lakes  water  necessary  to  the 
sustenance  of  an  essential  branch  of  industry.  .  .  . 

Another  objection  is  that  the  court  confuses  "actual  value," 
which  is  the  true  measure  of  compensation  (Const.,  art.  1, 
sec.  14,  and  Code  Civ.  Proc.,  sec.  1249),  with  "market  value" 
and  "actual  market  value,"  in  such  a  way  that  the  differ- 
ent instructions  are  either  self-contradictory  or  unmeaning. 
We  do  not  think  the  instructions  are  self -contradictory,  and 
their  meaning  we  take  to  be  this:  "Actual  value"  is  the  meas- 
ure of  compensation,  but  "market  value"  is  the  criterion  of 
actual  value,  and  the  definition  of  market  value  is  given  in 
the  instructions  numbered  25,  26,  et  seq.  If,  then,  these  in- 
structions lay  down  a  correct  rule  for  ascertaining  actual 
value,  the  charge  as  a  whole  is  not  erroneous.  In  most  re- 
spects the  charge  is  sustained  by  previous  decisions  of  this 


344  WATER  RIGHTS  AND  IRRIGATION  LAW. 

court.  (San  Diego  etc.  Co.  v.  Neale,  78  Cal.  63,  20  Pac.  372,  3 
L.  R.  A.  83;  Spring  Valley  W.  W.  v.  Drinkhouse,  92  Cal.  528, 
28  Pac.  681.)  But  there  is  one  objection  strongly  urged  in  this 
case  which  was  not  involved  and  could  not  have  been  consid- 
ered in  any  case  formerly  decided  here. 

In  several  of  these  instructions  the  jury  are  told  in  effect 
that  in  estimating  the  value  of  these  lands  they  must  not 
take  into  consideration  any  fact  discovered  since  the  sum- 
mons was  issued.  In  other  words,  to  use  the  illustration  put 
by  appellants,  if  a  gold  mine  worth  millions  of  dollars  had 
been  discovered  in  this  land  the  day  after  the  issuance  of 
summons,  the  city  could  take  the  land  by  paying  its  value 
for  agricultural  purposes. 

This  conclusion,  it  is  true,  follows  logically  from  the  propo- 
sition that  market  value  at  the  date  of  the  summons  is  to  con- 
trol, and  that  is  the  idea  upon  which  the  instructions  are 
based.  But  I  think  this  is  a  mistaken  idea.  The  thing  to 
be  ascertained  is  not  market  value,  but  actual  value  (Code 
Civ.  Proc.,  sec.  1249),  and  the  only  reason  why  market  value 
is  taken  as  the  criterion  of  compensation  in  ordinary  cases  is 
because  it  is  in  such  cases  the  true  measure  of  actual  value — 
the  only  practical  test.  But  in  a  case  where  discoveries  made 
after  the  issuance  of  summons  demonstrate  that  the  actual 
intrinsic  value  of  the  land  at  that  date  was  greater  than  its 
market  value — in  other  words,  when  it  appears  that  market 
value  is  no  criterion  of  actual  value — those  discoveries  should 
be  taken  into  consideration.  As  such  discoveries  were  claimed 
in  this  case,  I  think  the  court  erred  in  giving  and  refusing 
the  instructions  referred  to. 

10.  The  giving  of  instruction  9  is  complained  of  upon  the 
ground  that  there  was  no  evidence  upon  which  to  base  it. 
Unless  we  have  greatly  misunderstood  the  defendants'  posi- 
tion, the  instruction  meets  one  of  their  claims  to  percolating 
waters,  but  if  they  do  not  claim  the  right  to  undermine  the 
surface  stream  and  draw  off  its  waters  the  instruction  did 
them  no  harm.  It  stated  the  law  correctly. 

And  so,  also,  does  instruction  23  lay  down  a  correct  rule 
clearly  applicable  to  the  case.  The  point  for  the  jury  to  de- 
termine was  the  value  given  to  these  lands  by  percolating 
waters  not  a  part  of  the  stream — waters  which  the  owners 


HUDSON  v.  DAILET.  345 

of  the  land  had  a  right  to  convey  to  a  distance  for  sale.  In 
considering  the  value  of  such  waters  it  was  certainly  material 
to  consider  at  the  same  time  whether  the  defendants  might 
not  at  any  moment  be  wholly  deprived  of  them  by  the  ex- 
ercise on  the  part  of  others  of  the  same  right  in  their  lands 
claimed  by  defendants  with  respect  to  their  own.  .  .  . 

For  the  reasons  stated  in  the  foregoing  opinion  I  think  the 
judgment  and  order  of  the  superior  court  should  be  reversed, 
and  the  cause  remanded  for  a  new  trial  as  to  the  single  issue 
of  compensation  and  damages  —  the  issue,  that  is  to  say,  which 
was  submitted  to  the  jury  on  the  former  trial. 


Percolating    Waters  —  Diminution    of    Surface    Stream    by 
Wells  —  Reasonable  Use. 

VICTORIA  HUDSON   et    al.,   Plaintiffs    and    Appellants, 
v.  ELLA  M.  DAILEY  et  al.,  Defendants  and  Respond- 


(L.  A.  No.  2234,  Cal.  Dec.  1,  1909)  105  Pac.  000.) 

Appeal  from  the  Superior  Court  of  Los  Angeles  County. 
Charles  Monroe,  Judge.  .  .  . 

The  plaintiff,  Victoria  Hudson,  alleges  that  she  is  the 
owner  of  seven  hundred  and  sixty  acres  of  land  in  the  Rancho 
de  la  Puente  ;  that  said  land  is  riparian  to  a  stream  of  water 
known  as  San  Jose  creek  and  is  entitled  to  riparian  rights 
therein,  and  to  receive  therefrom  for  use  thereon  a  flow  of 
two  hundred  and  fifty  miner's  inches  of  water;  that  the 
water  of  said  stream  is  directly  supplied  to  it  from  the 
saturated  soils  and  gravels  of  the  valley  through  which  it 
runs;  that  the  defendants  have  bored  a  number  of  wells  in 
said  valley  from  which,  some  by  artesian  pressure  and  some 
by  pumps,  but  all  without  right,  they  obtain  large  quanti- 
ties of  the  waters  which  feed  said  creek  and  appropriate  the 
same  to  their  own  use,  thereby  depleting  the  streams  flowing 
into  the  creek  to  the  extent  of  three  hundred  miner's  inches, 
and  depriving  the  plaintiff  of  the  waters  thereof,  and  that 
they  claim  the  right  to  continue  this  use  of  the  waters  lying 
beneath  their  lands.  She  prays  for  a  decree  quieting  her 


346  .WATER  EIGHTS  AND  IRRIGATION  LAW. 

title  to  two  hundred  and  fifty  miner's  inches  of  water  of  the 
creek,  and  enjoining  the  defendants  from  pumping  and  using, 
the  water  of  said  wells  to  an  extent  that  will  prevent  a 
sufficient  flow  of  water  in  said  creek  to  supply  her  with  said 
quantity  therefrom.  The  plaintiff,  J.  "W.  Hudson,  is  the  hus- 
band of  Victoria,  and  has  no  interest  in  the  suit.  In  this 
opinion  when  we  mention  the  plaintiff  we  refer  to  Victoria. 

The  answer  denies  many  of  the  material  allegations  of  the 
complaint.  Defendant  Currier  answers  separately,  making 
the  additional  defense  that  the  plaintiffs'  action  is  barred  by 
the  statute  of  limitation.  The  action  was  begun  on  Novem- 
ber 30,  1904.  The  findings  are  very  full  and  elaborate.  The 
conclusion  of  law  and  judgment  was  that  the  plaintiffs  take 
nothing  by  the  suit.  A  motion  for  a  new  trial  was  denied. 
The  plaintiffs  appeal  from  the  judgment  and  order. 

The  appellant  urges  that  the  findings  of  the  court  are,  in 
many  particulars,  contrary  to  the  evidence.  We  do  not  find 
it  necessary  to  consider  all  of  these  specifications  in  detail. 
We  are  of  the  opinion  that,  upon  a  proper  view  of  the  case 
as  presented  in  the  court  below,  all  the  findings  that  are  nec- 
essary to  support  the  judgment  are  sustained  by  the  evidence. 

San  Jose  creek,  in  its  original  natural  state,  had  its  origin 
in  the  Sierra  Madre  mountains,  from  whence  it  then  flowed 
on  the  surface  of  the  ground  through  the  plain  upon  which 
the  city  of  Pomona  is  now  situated  and  to  and  through  the 
San  Jose  valley.  For  many  years,  however,  owing  to  the 
diversion  and  use  of  the  water  in  Pomona  and  vicinity,  there 
has  been  no  surface  stream  in  the  channel  from  its  em- 
bouchure from  the  mountains  down  to  the  upper  part  of  the 
San  Jose  valley,  at  which  point  the  stream  again  appeared 
on  the  surface  and  flowed  down  to  the  lands  of  the  parties 
here  concerned.  It  is  the  theory  of  the  plaintiff  that  the 
greater  part  of  the  water  of  the  stream,  thus  rising  in  the 
valley,  is  composed  of  water  which  comes  from  the  mountain 
streams  and  sinks  into  the  underlying  porous  strata  extend- 
ing from  the  foot  of  the  mountains  to  and  into  the  San  Jose 
valley  and  under  the  lands  of  the  defendants,  and  which, 
owing  to  the  narrowing  of  said  valley  at  its  upper  end  and 
the  consequent  elevation  of  the  water  plane  at  that  point, 
rises  to  the  surface  and  flows  in  the  depression  constituting 


HUDSON  v.  DAILEY.  347 

the  channel  of  the  creek.  Accepting  this  as  correct,  the 
defendants  claim  that  the  plaintiff  has  shown  no  legal  in- 
jury,  no  invasion  of  her  rights  and  no  ground  for  relief.  The 
evidence  shows  that  her  theory  is  correct  in  the  main.  Some 
of  the  water,  thus  percolating  through  the  underlying  strata, 
comes  from  rainfall  upon  the  adjacent  hills  and  upon  the 
valley  itself  and  the  plain  above  in  the  vicinity  of  Pomona, 
but  this  fact  does  not  affect  the  relative  rights  of  the  parties 
to  the  water. 

There  is  a  finding  to  the  effect  that  the  soils  and  material 
of  the  earth  intervening  between  the  respective  pumping 
plants  and  the  creek,  "or  a  considerable  portion  thereof,  are 
impervious  and  do  not  permit  the  water  to  pass  through  them 
to  the  creek,"  that  there  are  different  and  distinct  water- 
bearing strata  underneath  the  valley  surface,  between  which 
lie  other  strata  containing  no  water,  and  that  a  part  of  the 
water  obtained  by  the  defendants'  wells  is  drawn  from  lower 
strata  which  do  not  feed  the  creek  at  the  point  where  the 
plaintiff  obtains  her  water  from  it.  The  plaintiff  contends 
that  these  findings  are  not  sustained  by  the  evidence.  The 
finding  that  the  waters  of  the  lower  strata  do  not  feed  the 
creek,  flowing  at  the  plaintiff's  dam,  is  based  on  the  qualified 
and  conditional  opinion  of  certain  witnesses  that  these  lower 
strata  were  overlaid  by  a  blanket  of  impervious  material, 
throughout  the  entire  portion  of  the  valley  above  the  dam, 
through  which  no  water  could  rise  into  the  creek  and  into 
which  no  water  could  sink  from  the  strata  which  do  feed  the 
creek.  It  assumes  that  there  were  no  breaks  or  interruptions 
in  this  impervious  stratum  or  blanket,  through  which  the 
waters  could  pass  from  it  to  the  strata  above  or  below,  or 
from  the  upper  strata  through  it.  There  was  no  evidence 
of  these  facts.  If  there  was  in  the  valley  a  single  acre  where 
this  supposed  blanket  did  not  exist,  the  opening  would  be 
equivalent  to  an  immense  well  through  which  the  water  would 
pass  from  the  upper  strata  into  the  lower  one,  if  the  water 
in  the  latter  was  extracted,  or  would  rise  into  the  upper 
strata  if  the  water  in  the  upper  strata  was  diminished  and 
there  was  pressure  below,  thus  depleting  or  replenishing,  as 
the  case  might  be,  the  upper  strata  from  which  the  creek  water 
was  directly  obtained,  and  to  that  extent  affecting  the  flow  in 


349  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  creek.  But  as  the  findings  also,  in  substance ,  declare  that 
the  pumping  of  the  defendants  does,  to  a  material  extent, 
decrease  the  amount  of  water  which  the  plaintiff  is  able  to 
divert  from  the  creek  and  which  she  needs  for  the  irrigation 
of  her  land,  the  finding  as  to  the  lower  strata  is  immaterial. 
If  the  pumping  by  the  defendants  constituted  an  unlawful  v* 
diversion  of  water  to  which  plaintiff  was  entitled,  it  would  be 
no  defense  that  they  also  took  other  water  from  another 
source. 

Each  defendant  owns  a  separate  tract  of  land  in  severalty. 
All  of  these  lands,  except  those  of  Currier,  lie  within  the 
valley  and  over  the  underground  porous  strata  from  which 
the  creek  issues.  Each  of  these  defendants,  by  means  of 
wells  and  pumps,  takes  water  from  the  strata  and  uses  it 
upon  his  tract  of  overlying  land.  These  are  the  diversions 
complained  of  and  shown  by  the  evidence.  These,  coupled 
with  other  similar  diversions  and  uses  in  Pomona  and  vicinity 
and  a  series  of  ten  unusually  dry  years  immediately  preced- 
ing the  action,  have  caused  the  stream  flowing  upon  the 
surface  in  the  creek  to  diminish  to  such  an  extent  that,  at  the 
plaintiff's  place  of  diversion  from  the  creek,  the  flow  is  much 
less  than  it  was  formerly  and  she  is  thereby  deprived  of  the 
use  of  the  quantity  of  water  which,  for  thirty  years  pre- 
viously, she  had  been  accustomed  to  use. 

The  court  found  that  none  of  these  defendants  takes  or 
uses  more  water  in  this  way  than  is  necessary  for  irrigation 
and  domestic  use  on  his  particular  tract  of  land.  In  her 
briefs  the  plaintiff  practically  concedes  that  this  finding  is 
correct.  There  is  no  direct  evidence  to  show  whether  or  not 
the  underground  supply  is  insufficient  for  all  demands  upon 
it.  If  we  concede  that  the  circumstances  show  that  it  is  not  ** 
sufficient  for  all,  we  are  then  met  by  the  proposition  that 
there  was  no  evidence  to  prove  that  said  defendants,  or  any 
of  them,  have  ever  taken  more  than  a  reasonable  share  of  such 
water.  The  plaintiff  tendered  no  issue  of  that  character. 
The  complaint  asserts  a  paramount  right  in  the  plaintiff, 
superior  to  that  of  the  defendants.  There  is  no  attempt  to 
present  a  case  of  excessive  use  by  a  defendant  entitled  to 
share  in  a  common  supply,  or  to  obtain  a  decree  apportion- 
ing the  waters  of  the  valley  among  the  parties.  The  evidence 


HUDSON  v.  DAILEY.  319 

does  not  supply  the  data  necessary  to  apportion  the  water 
to  which  each  party  is  entitled.  If  these  defendants  are  en- 
titled to  a  reasonable  share  of  this  underground  water,  the 
plaintiff  has  shown  no  case  against  them. 

The  lands  of  the  plaintiff  and  of  all  of  the  defendants,  ex- 
cept Currier  and  Ybarra,  were  originally  a  part  of  the 
Rancho  de  la  Puente.  This  ranch  consisted  of  about  49,000 
acres  of  land,  included  practically  the  whole  of  the  San  Jose 
valley,  and  was  granted  by  the  Mexican  government  to  John 
Rowland  and  William  Workman.  In  1868  these  two  own- 
ers made  a  mutual  deed  of  partition  thereof  containing  the 
following  covenant:  "And  it  is  mutually  agreed  and  cove-  " 
nanted  that,  notwithstanding  this  partition  hereby  made,  the 
rights  to  use  and  benefits  of  the  waters  of  the  San  Jose 
creek  flowing  into  said  Rancho  de  la  Puente  or  rising  thereon, 
whether  for  water  power,  irrigation  or  other  purposes,  shall 
continue  and  remain  as  heretofore  to  be  had,  held,  possessed 
and  enjoyed  by  the  parties  in  equal  shares  and  to  their  heirs 
and  assigns." 

The  plaintiff's  land  and  all  the  lands  in  said  rancho  be- 
longing to  the  respective  parties  are  held  by  title  derived 
from  the  parties  to  this  deed  and  covenant. 

At  the  time  the  Rowland- Workman  deed  was  executed, 
the  ditch  and  dam  which  the  plaintiff  now  uses  was  in  use, 
and  by  means  thereof  the  water  of  the  creek  was  carried 
to  the  plaintiff's  land.  It  is  contended  that  the  effect  of  the 
covenant  aforesaid  was  to  bind  each  of  the  parties  and  their 
successors  in  interest  to  maintain  his  land  in  such  condition, 
and  make  only  such  use  thereof  as  would  enable  her  to  con- 
tinue to  obtain  from  the  stream  by  said  dam  and  ditch  the 
same  amount  of  water  that  was  then  taken  therefrom  and 
used  on  her  land,  and  that  the  extraction  of  the  underground 
water  and  consequent  diminution  of  the  flow  in  the  creek  is 
a  violation  of  the  covenant.  We  do  not  think  it  was  in- 
tended to  have  that  effect,  but  that  it  merely  divided  the 
rights  to  the  water  into  equal  shares  between  them,  regardless 
of  frontage  on  the  stream  or  other  circumstances  affecting 
the  amount  to  which  each  would  have  been  entitled.  But, 
conceding  that  it  would  have  the  effect  as  contended,  between 
the  successors  of  Rowland  as  against  the  successors  of 


350  WATER  RIGHTS  AND  IRRIGATION  LAW. 

"Workman,  it  would  have  no  effect  whatever  between  pur- 
chasers of  different  tracts  from  the  same  original  owner. 
Purchasers  from  Rowland  of  different  parts  of  the  land  al- 
lotted to  him  could  not  claim  the  benefit  of  this  covenant,  as 
against  each  other.  The  plaintiff  claims  under  Rowland. 
She  does  not  show  that  the  defendants  owning  parts  of  the 
Puente  ranch  do  not  also  claim  under  him. 

We  cannot  determine  from  the  findings  or  evidence  whether 
the  tracts  of  land  in  this  rancho,  now  owned  by  the  several 
defendants  and  not  contiguous  to  the  surface  flow  of  the 
creek,  are  entitled  to  riparian  rights  in  the  surface  stream 
or  not.  The  covenant  above  mentioned  does  not  necessarily 
secure  it  to  them.  A  subsequent  conveyance  by  one  of  the 
original  owners,  of  a  part  of  the  tract  not  abutting  upon  the 
creek,  would  not  carry  any  riparian  or  other  right  in  the 
creek,  unless  it  was  so  provided  in  the  conveyance,  or  unless 
the  circumstances  were  such  as  to  show  that  parties  so  in- 
tended, or  such  as  to  raise  an  estoppel.  If  the  tract  con- 
veyed was  not  contiguous,  had  never  received  water  from 
the  creek,  and  there  were  no  ditches  leading  from  the  creek 
to  it  at  the  time  of  conveyance,  nor  other  conditions  indicat- 
ing an  intention  that  it  should  continue  to  have  the  riparian 
right,  notwithstanding  its  want  of  access  to  the  stream,  the 
mere  fact  that  it  was  a  part  of  the  rancho  to  which  riparian 
right  had  extended  while  the  ownership  was  continuous  from 
it  to  the  banks  of  the  stream  would  not  preserve  that  right 
to  the  severed  tract.  The  severance  under  such  circumstances 
would  cut  off  such  tract  from  the  riparian  right.  (Anaheim 
W.  W.  Co.  v.  Fuller,  150  Cal.  331,  88  Pac.  978.)  The  rec- 
ord does  not  show  where  these  lands  lie  with  respect  to  the 
stream,  nor  what  were  the  covenants  in  the  deeds  by  which 
they  were  segregated  from  the  entire  tract,  nor  the  condi- 
tions then  existing  with  respect  to  the  use  of  the  water.  The 
court  finds  that  each  of  said  defendants,  before  he  resorted 
to  the  use  of  wells  and  pumps  had  been  accustomed  to  re- 
ceive and  use  on  his  land  some  of  the  water  from  the  creek, 
and  that  they  each  resorted  to  pumps  and  wells  because  of 
the  diminution  of  the  surface  flow,  but  the  conditions  of  such 
use,  and  the  nature  of  the  right  under  which  it  was  had,  are 
not  shown  except  by  the  statement  that  it  was  water  "which 


HUDSON  v.  DAILEY.  351 

they  had  appropriated  and  used  for  many  years."  How 
long  the  use  had  continued  does  not  appear.  The  court  finds  V 
that  the  wells  of  Currier,  Persons,  Dailey  and  Howell  were 
bored  and  had  been  in  operation  more  than  five  years  be- 
fore the  action  was  begun.  This  defense  will  be  considered 
hereafter.  The  other  defendants  cannot  justify  their  taking  w— 
of  the  underground  water  as  a  continuation  of  the  riparian 
use  recognized  by  the  covenant  in  the  Rowland- Workman 
deed,  nor  as  an  indirect  exercise  of  a  prescriptive  right  pre- 
viously acquired  by  them  in  the  flow  of  the  creek,  for  they 
do  not  appear  to  have  acquired  a  right  of  either  character. 

It  appears,  however,  that  the  lands  of  all  defendants  except  \/ 
Currier  are  situated  over  the  strata  from  which  they  obtain 
water  and  from  which  the  creek  is  also  supplied.  The  irri- 
gated lands  of  the  plaintiff  are  over  the  same  strata. 
Defendants'  lands  are  far  above  the  plaintiff's  place  of 
diversion  from  the  surface  stream  and  they  use  the  water 
only  upon  their  overlying  lands.  The  general  rule,  as  now  — ' 
established  by  the  decisions  of  this  court,  undoubtedly  is 
that  where  two  or  more  persons  own  different  tracts  of  land, 
underlaid  by  porous  material  extending  to  and  communicat- 
ing with  them  all,  which  is  saturated  with  water  moving 
with  more  or  less  freedom  therein,  each  has  a  common  and 
correlative  right  to  the  use  of  this  water  upon  his  land,  to 
the  full  extent  of  his  needs  if  the  common  supply  is  suffi- 
cient, and  to  the  extent  of  a  reasonable  share  thereof  if 
the  supply  is  so  scant  that  the  use  by  one  will  affect  the 
supply  of  others.  (Katz  v.  Walkinshaw,  141  Cal.  116,  99 
Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  766,  64  L.  R.  A.  236 ; 
McClintock  v.  Hudson,  141  Cal.  281,  74  Pac.  849;  Cohen  v. 
La  Canada  etc.  Co.,  142  Cal.  439,  76  Pac.  47 ;  Montecito  etc. 
Co.  v.  Santa  Barbara,  144  Cal.  585,  77  Pac.  1113 ;  Burr  v. 
Maclay,  154  Cal.  434,  98  Pac.  260 ;  Barton  v.  Riverside  Water 
Co.,  155  Cal.  509,  101  Pac.  790.)  Applying  this  rule,  and 
assuming  for  the  present  that  the  right  of  the  plaintiff  is 
not  paramount  to  that  of  the  others,  there  can  be  no  doubt 
that  the  taking  of  a  part  of  the  underground  waters  by  the 
defendants  is  not  unlawful,  unless  they  take  an  unreasonable 
share  thereof.  As  there  is  no  presumption  that  the  part  so 


352  WATER  EIGHTS  AND  IRRIGATION  LAW. 

taken  by  any  defendant  exceeds  his  reasonable  share,  it 
would  be  incumbent  upon  the  plaintiff  to  prove  it,  and  as  she 
had  made  no  attempt  to  do  so,  she  cannot  prevail  against 
them. 

She  insists,  however,  that  her  right  is  paramount  to  that 
of  the  defendants  to  the  use  of  these  underground  waters. 
Her  land,  or  the  part  of  it  upon  which  she  uses  the  water,  is 
riparian  to  the  creek.  She,  and  her  predecessors  in  interest, 
by  means  of  a  dam  and  open  ditch,  have  diverted  the  water 
from  the  creek  at  a  point  below  any  of  the  lands  of  the  de- 
fendants, and  have  used  it  upon  her  land  ever  since  the  year 
1868,  under  claim  of  right,  to  the  extent  of  about  250 
miner's  inches,  whenever  the  stream  was  large  enough  to  fur- 
nish that  amount.  The  diversions  of  the  defendants  by  their 
wells  have  materially  contributed  to  the  diminution  of  the 
surface  stream,  and  have,  to  that  extent,  deprived  her  of 
the  water  to  which  she  is  entitled,  if  her  right  is  superior  to 
theirs.  The  question  is  thus  presented  whether  or  not  the 
rights  of  a  riparian  proprietor,  to  the  waters  of  a  stream,  ex- 
tend to  the  subterranean  waters  above  from  which  the  stream 
proceeds,  and  are  paramount  to  that  of  the  owners  of  the 
lands  which  overlie  those  subterranean  waters. 

If  the  water  in  the  underground  strata  is  in  such  imme- 
diate connection  with  the  surface  stream  as  to  make  it  a  part 
of.  the  stream,  as  the  plaintiff  seems  to  contend,  then  the 
defendants'  lands  overlying  such  water  must  be  considered 
as  also  riparian  to  the  stream,  and,  under  the  law  of  riparian 
rights,  they  have  a  common  right  with  the  plaintiff  to  the 
use  of  the  water.  In  that  case  her  use  would  not  be  adverse 
to  them;  they  would  not  lose  their  right  by  disuse  and  their 
taking  of  a  reasonable  share  would  be  lawful.  (Coleman  v. 
LeFranc,  137  Cal.  271,  69  Pac.  1011.)  In  Verdugo  etc.  Co. 
v.  Verdugo,  152  Cal.  664,  93  Pac.  1021,  a  different  rule  was 
applied  because  in  that  case  the  right  of  the  party  taking 
the  surface  stream  was  paramount  to  the  right  of  the  other 
riparian  owners  along  its  course.  It  was  made  paramount 
by  the  force  of  a  decree  in  partition  setting  apart  the  sur- 
face stream  to  the  use  of  a  particular  tract  of  the  land,  ex- 
clusively, and  consequently  devesting  the  other  lands  of  all 
right  to  the  stream  and  giving  the  person  owning  the  land 


HUDSON  v.  DAILEY.  353 

to  which  it  was  assigned  the  right  to  have  its  flow  preserved 
undiminished.  The  rule  which  in  that  case  was  declared  to 
apply  to  such  of  the  underground  waters  as  might  prove  to 
be  unnecessary  to  the  access  to  it  would  have  the  right  to 
share  reasonably  in  its  use,  is  the  rule  applicable  to  the  case 
at  bar,  if  plaintiff  has  no  paramount  right.  But  the 
plaintiff  insists  that,  by  continuous  use  since  1868,  she  had 
gained  a  prescriptive  right  to  the  water  of  the  stream,  which, 
she  claims,  is  paramount  to  said  rights  of  the  defendants, 
at  least  to  the  extent  that  they  may  not  extract  the  under- 
ground water  in  such  quantities  as  to  deplete  the  surface 
stream  to  her  injury.  If  this  water  is  a  part  of  the  stream 
this  claim  is  also  untenable.  The  defendants,  as  riparian 
owners,  would  not  lose  their  rights  by  disuse.  Her  use  of 
the  water,  after  it  had  passed  through  their  lands  and  be- 
come part  of  the  surface  stream,  would  not  injure  them,  nor 
constitute  a  trespass  upon  their  property,  and,  hence,  it 
would  not  be  adverse  to  them,  and  could  not  be  the  founda- 
tion of  a  title  by  prescription  as  against  them.  (Hargrave 
v.  Cook,  108  Cal.  78,  41  Pac.  18,  30  L.  E.  A.  390 ;  Batligate  v. 
Irvine,  126  Cal.  140,  77  'Am.  St.  Rep.  158,  58  Pac.  442 ;  Cave 
v.  Tyler,  133  Cal.  568,  65  Pac.  1089.) 

There  is  also  a  claim  that  this  underground  water,  as  to  V 
a  great  part  of  the  lands,  has  not  the  characteristics  of  a 
stream,  but  must  be  classed  as  percolating  water.  There  will 
always  be  great  difficulty  in  fixing  a  line  beyond  which  the 
water  in  the  sands  and  gravels  over  which  a  stream  flows 
and  which  supply  or  uphold  the  stream  ceases  to  be  a  part 
thereof  and  becomes  what  is  called  percolating  water.  Un- 
doubtedly, the  water  in  the  lands  of  many  of  the  defendants 
would  be  of  the  class  ordinarily  designated  as  percolating 
water.  It  is  therefore  important  to  determine  the  relative 
rights  of  the  owner  of  the  nonriparian  land  containing  perco- 
lating w?ater,  which  feeds  a  surface  stream,  and  those  who 
have  acquired  riparian  or  prescriptive  rights  in  said  stream, 
where  the  pumping  of  such  percolating  water  and  its  use  on 
the  land  in  which  it  is  found  will  diminish  the  surface  stream, 
to  the  injury  of  those  having  such  riparian  or  prescriptive 
rights  therein. 
23 


354  WATER  RIGHTS  AND  IRRIGATION  LAW. 

^The  owner  of  land  has  a  natural  rigKt  to  the  reasonable  N 
use  of  the  waters  percolating  therein,  although  it  may  be  mov- 
ing through  his  land  into  the  land  of  his  neighbor,  and  al- 
though his  use  may  prevent  it  from  entering  his  neighbor's 
land  or  draw  it  therefrom:.  This  right  arises  from  the  fact 
that  the  water  is  then  in  his  land  so  that  he  may  take  it  with- 
out trespassing  upon  his  neighbor.  His  ownership  of  the  land 
carried  with  it  all  the  natural  advantages  of  its  situation, 
and  the  right  to  a  reasonable  use  of  the  land  and  everything- 
it  contains,  limited  only  by  the  operation  of  the  maxim, 
"Sic  utere  tuo  ut  alienum  non  laedas."  It  is  upon  this  prin-  • 
ciple  that  the  law  of  riparian  rights  is  founded,  giving  to 
each  owner  the  right  to  use  the  waters  of  the  stream  upon 
his  riparian  land,  but  limiting  him  to  a  reasonable  share 
thereof,  as  against  other  riparian  owners  thereon.)  We  think 
the  same  application  of  the  principle  should  be  made  to  the 
case  of  percolating  waters  feeding  the  stream  and  necessary 
to  its  continued  flow/  There  is  no  rational  ground  for  any 
distinction  between  such  percolating  waters  and  the  waters 
in  the  gravels  immediately  beneath  and  directly  supporting 
the  surface  flow,  and  no  reason  for  applying  a  different  rule 
to  the  two  classes,  with  respect  to  such  rights,  if,  indeed, 
the  two  classes  can  be  distinguished  at  all.  Such  waters,  to- 
gether with  the  surface  stream  supplied  by  them,  should  be 
considered  a  common  supply,  in  which  all  who  by  their  nat- 
ural situation  have  access  to  it  have  a  common  right,  and 
of  which  they  may  each  make  a  reasonable  use  upon  the 
land  so  situated,  taking  it  either  from  the  surface  flow,  or 
directly  from  the  percolations  beneath  their  lands.  The  nat- 
ural rights  of  these  defendants  and  the  plaintiff  in  this 
common  supply  of  water  would  therefore  be  coequal,  except 
as  to  quantity,  and  correlative. 

There  is  nothing  in  the  facts  alleged  or  proven  giving  to 
the  plaintiff  any  paramount  or  superior  rights  in  these  waters. 
There  is  no  evidence  that  she  had  ever  used  or  diverted  the 
water  in  such  a  manner  as  to  interfere  in  any  way  with  the 
use  of  percolating  water  by  the  defendants,  or  so  as  to  make 
her  use  adverse  to  them  and  give  her  a  prescriptive  right 
against  them  for  the  amount  she  was  accustomed  to  use.  She 


HUDSON  v.  DAILEY.  355 

and  they  alike  must  depend  solely  on  their  natural  rights  for 
the  determination  of  the  quantity  they  may  take  from  this 
common  supply.  As  she  has  failed  to  allege  that  they  have 
taken  or  threaten  to  take  more  than  a  reasonable  proportion 
of  the  water,  and  as  she  had  no  right  superior  to  theirs,  she 
has  not  established  a  cause  of  action  against  them  with  respect 
thereto. 

The  lands  of  the  defendants,  Ybarra  and  McClintock,  are 
not  within  the  Rancho  de  la  Puente,  but  are  within  the  San 
Jose  Valley,  and  are  situated  over  the  same  underground 
strata  as  the  other  lands  hereinbefore  mentioned.  All  that 
has  been  said  with  regard  to  the  natural  rights  belonging  to 
the  lands  of  the  other  defendants  applies  with  equal  force  to 
these  lands.  The  facts  are  the  same  and  the  plaintiff  has 
failed  to  establish  a  cause  of  action  as  to  them. 

The  case  against  the  defendant  Currier  stands  upon  differ-'' 
ent  grounds.  He  pleaded  the  statute  of  limitations  and  the 
finding  of  the  court  is  that  the  action  was  barred  as  against 
him.  This  finding  is  sustained  by  the  evidence.  He  had 
diverted  the  water  of  the  creek  continuously  and  adversely 
to  the  plaintiff,  under  claim  of  right,  and  used  it  on  his 
land  for  many  years  before  the  suit  was  begun,  by  means  of 
a  dam  and  ditch.  The  flow  of  the  creek  decreased,  and  being 
unable  to  obtain  therefrom  the  waters  he  needed  he  put  down 
seven  wells  in  the  bed  of  the  creek,  from  three  of  which  he 
obtained  water  equal  to  the  quantity  to  which  he  had  pre- 
viously obtained  the  right  by  such  adverse  use.  These  wells  ^ 
were  sunk  more  than  five  years  before  the  action  was  begun. 
The  evidence  shows  that  the  plaintiff  knew  of  such  use  and 
knew  that  the  flow  in  the  creek  immediately  decreased.  By 
reasonable  inquiry  she  could  have  ascertained  that  the  de- 
crease was  caused  by  the  wells.  Under  these  circumstances 
the  action  is  clearly  barred.  Another  well  was  bored  by 
him  within  the  five-year  period.  The  court  finds  that  the 
water  flowing  from  it  was  very  small.  In  order  to  make  a 
case  for  an  injunction  it  was  necessary  for  the  plaintiff  to 
show  substantial  injury.  She  introduced  no  evidence  of  the 
quantity  discharged  from  this  well,  resting  it  upon  the  testi- 
mony of  the  defendant  that  it  was  very  small,  as  the  court 


356  WATER  RIGHTS  AND  IRRIGATION  LAW. 

found.  In  support  of  the  finding  and  judgment  we  will  pre- 
sume that  the  quantity  was  negligible  and  the  injury  to  the 
plaintiff  therefrom  too  slight  to  justify  an  injunction. 

The  wells  of  Dailey,  Persons  and  Howell  having  been  also 
in  use  for  more  than  five  years,  the  action  as  against  them 
would  be  barred  by  laches.  The  facts  as  to  them  were  al- 
leged in  defense,  but  there  was  no  plea  of  the  statute  of 
limitations  on  their  behalf. 

The  evidence  shows  that  Currier  left  his  artesian  wells  un- 
capped and  permitted  the  water  therefrom  to  flow  down  the 
creek  channel  unused,  so  far  as  he  was  concerned,  during 
the  winters,  when  it  was  not  needed.  Plaintiff  claims  that 
this  was  a  violation  of  the  statute  of  1878  (Stats.  1877-78, 
195),  declaring  any  uncapped  artesian  well  from  which  water 
was  permitted  to  flow  and  run  to  waste  to  be  a  public  nuisance, 
and  making  it  a  misdemeanor  in  the  owner  of  such  well  to 
permit  such  waste,  and  that,  as  the  right  to  maintain  a  pub- 
lic nuisance  cannot  be  gained  by  adverse  use,  the  finding 
that  the  plaintiff's  action,  as  against  Currier,  is  barred  by 
limitation,  is  erroneous.  We  cannot  say  that  a  private  prescrip- 
tive right  to  private  property  may  not  be  obtained  by  means  of 
acts  which  may  also  constitute  or  cause  a  public  nuisance. 
The  private  owner  who  is  injured  has  a  right  of  action  in 
case  of  special  injury,  and  such  right  is  barred  in  the  same 
manner  as  other  actions  of  like  nature.  A  private  owner, 
so  injured,  cannot  invoke  the  protection  of  the  public  right 
to  abate  the  nuisance,  which  is  not  barred,  and  thus  avoid 
the  effect  of  the  statute  of  limitations  upon  his  private  right 
of  action.  A  further  sufficient  answer  to  this  point  is  that 
the  water  from  these  wells  did  not  go  to  waste  during  the 
irrigating  season.  The  fact  that  it  was  allowed  to  flow  with- 
out use  during  the  winter  when  it  was  not  needed  for  use 
by  anyone,  might  make  the  uncapped  wells  a  public  nuisance 
during  that  season,  but  it  would  not  have  that  effect  during 
the  time  when  the  water  was  used,  nor  would  it  prevent  Cur- 
rier from  acquiring,  by  adverse  use  during  the  regularly  re- 
curring irrigation  seasons,  the  right  to  divert  the  water  by 
the  wells  during  that  season. 

It  may  be  that  the  effect  of  allowing  the  water  to  flow  from 
said  wells  during  the  winter  is  to  unnecessarily  lower  the 


SANGUINETTI  v.  POCK.  357 

water  and  decrease  the  pressure  in  the  underground  strata, 
and  thereby  reduce  the  creek  flow  during  the  ensuing  irrigat- 
ing season,  or  part  of  it,  and  possibly  the  plaintiff  may  have 
a  cause  of  action  to  prevent  such  diminution  from  that  cause. 
But  the  complaint  does  not  allege  such  waste,  and  without 
such  allegation  it  does  not  state  a  cause  of  action  of  that 
character. 

There  is  no  foundation  for  the  proposition  that  the  statute 
of  limitations  would  not  begin  to  run  in  favor  of  Currier, 
with  respect  to  his  right  to  maintain  wells,  until  the  extraction 
of  water  by  his  weHs  had  begun  to  diminish  the  flow  at  the 
plaintiff's  dam.  The  evidence  shows  that  the  effect  was  per- 
ceptible at  the  dam  immediately,  and  that  the  plaintiff  had 
knowledge  of  the  flow  from,  the  wells  and  the  use  thereof  by 
Currier  from  the  beginning.  This  was  sufficient  to  charge 
her  with  notice  that  the  tendency  of  the  diversion  of  the 
flow  at  those  wells  would  be  to  reduce  the  amount  in  the 
stream  below  and  to  start  the  statute  of  limitations  running. 

There  are  no  other  points  deserving  of  consideration. 

The  judgment  and  order  are  affirmed. 


Watercourse  Defined — Easement  to  Discharge  Surface  Water 
— Flood  Waters. 

ANGELO    SANGUINETTI,   Respondent,   v.   WALTER  R. 

POCK,  Appellant. 
(136  Cal.  466,  89  Am.  St.  Eep.  169,  69  Pae.  98.) 

CHIPMAN,  C. — Action  to  have  a  certain  levee  constructed 
by  defendant  declared  to  be  a  nuisance  and  for  damages.  A 
jury  was  called  to  determine  certain  special  issues  and  the 
court  also  made  findings  of  fact. 

Summarized  from  the  findings,  it  appears  that  plaintiff  and 
defendant  own  adjoining  lands,  as  shown  by  the  diagram; 
a  natural  waterway  passes  through  these  lands;  its  course  is 
from  east  to  west,  and  it  extends  eastward  some  distance 
east  of  the  Mariposa  road  and  westward  through  defendant's 


358  WATER  RIGHTS  AND  IRRIGATION  LAW. 

land,  and  "in  its  natural  condition  was  sufficient  to  conduct 
and  carry  away  the  waters  which  naturally  accumulated 
thereon,"  and  "the  waters  which  accumulated  in  said  water- 
way were,  by  means  thereof,  conducted  and  carried  away 
from  plaintiff's  lands,  and  such  waters  were  thereby  pre- 
vented from  accumulating  on  or  flooding  the  lands  of  plain- 
tiff." In  December,  1896,  defendant  constructed  a  dam  and/ 
levee  across  the  bed  of  said  waterway  at  the  point  where  it- 
enters  defendant's  lands,  by  means  of  which  the  water  was 
obstructed  in  its  flow,  was  diverted  from  its  channel  where  it 
was  accustomed  to  run,  and  was  made  to  back  upon  and  over- 
flow plaintiff's  lands  to  the  injury  of  his  crops  during  the 
year  1897  in  the  sum  of  $40.  Defendant  continues  to  main- 
tain his  said  levee  and  threatens  so  to  do,  and  will  thus  de- 
prive plaintiff  of  the  enjoyment  of  his  said  land.  The  land 
of  plaintiff  and  defendant  is  not  situate  on  a  plain  substan- 
tially level  and  unbroken  by  waterways,  but  the  land  of  plain- 
tiff is  higher  than  the  land  of  defendant,  "and  through  said 
land  passes  said  waterway,  by  which  the  wraters  naturally 
accumulating  on  plaintiff's  lands  have  been  conducted  and 
carried  away."  Mormon  slough  is  a  river,  and  is  a  branch 
of  the  Calaveras  river,  and  flows  nearly  parallel  with  said 
waterway  from  east  to  west  and  about  one  mile  distant  on 
the  north.  "In  seasons  of  high  water  the  water  flowing  in 
Mormon  slough  overflows  the  banks  thereof,  and  by  means 
of  the  said  waterway  reaches  the  lands  of  the  plaintiff,  from 
whence  such  waters  pass  by  means  of  the  said  waterway 
through  defendant's  lands."  Plaintiff's  crop  was  injured 
"in  a  freshet,"  but  "said  flow  was  not  unusual  or  extraor- 
dinary for  the  season  of  the  year  when  and  where  the  same 
occurred."  In  the  year  1896  defendant  constructed  along 
the  eastern  boundary  of  his  land  a  levee  and  canal,  or  ditch, 
which  at  the  south  end  connected  with  another  ditch  on  the 
lands  of  S.  Hewlett,  but  said  ditch  "is  not  sufficient  to  carry 
the  waters  which  naturally  fall,  flow,  or  accumulate  on  the 
lands  of  plaintiff." 

As  conclusions  of  law,  the  court  found  that  the  levee  of 
defendant  is  a  nuisance,  and  plaintiff  is  entitled  to  have  it 
abated  and  the  restoration  of  the  waterway  to  its  former 
condition,  and  that  defendant  be  restrained  from  further 


SANGUIXETTI  v.  POCK.  359 

constructing  or  maintaining  said  levee;  also  to  recover  $40 
damages.  Judgment  was  accordingly  entered.  The  appeal 
is  by  defendant  from  the  judgment  and  the  order  denying 
his  motion  for  a  new  trial.  .  .  . 

There  are  two  principal  questions  presented  to  which  coun- 
sel have  chiefly  devoted  their  attention:  1.  Is  the  drainway 
mentioned  in  the  findings  shown  by  the  evidence  to  be  a 
watercourse,  as  denned  by  the  courts,  which  defendant  had 
no  right  to  obstruct  to  protect  his  lands  either  against  the 
ordinary  rainfall  flowing  down  this  stream  or  the  floodwaters 
of  Mormon  slough?  2.  If  no  watercourse  existed,  had  de- 
fendant the  right  to  obstruct  what  he  concedes  was  a  de- 
pression in  the  land  through  which  the  rainfall  accumulating 
on  plaintiff's  land  was  accustomed  to  flow  over  defendant's 
land?  Briefly,  had  defendant  the  right  to  levee  against  the 
ordinary  rainfall  and  also  against  the  flood  waters  of  Mor- 
mon slough? 

1.  It  is  settled  law  in  this  state  that  plaintiff,  as  the  owner 
of  the  upper  land,  has  an  easement  over  the  lower  adjacent 
land  of  defendant  to  discharge  surface  water  as  it  is  accus- 
tomed naturally  to  flow,  and  defendant  had  no  right  to  inter- 
rupt such  natural  flow  to  plaintiff's  injury.  The  evidence 
was  without  substantial  conflict  that  the  depression,  or  so- 
called  watercourse,  running  through  defendant's  and  plain- 
tiff's lands,  was  a  natural  drainway  for  the  water  accumu- 
lating from  rainfall  on  plaintiff's  lands,  and  that  by  con- 
structing his  levee  across  this  swale,  or  drainway,  the  effect 
was  to  stop  the  flow  of  such  water  and  to  cause  it  to  back  over 
plaintiff's  land  to  his  injury.  Defendant  constructed  a  ca- 
nal, or  ditch,  along  this  levee  its  entire  length,  on  his  own 
land,  which  but  for  its  defects  would  probably  be  ample  to 
carry  away  the  water  ordinarily  falling  from  the  clouds  and 
accumulating  on  plaintiff's  land;  and  if  of  sufficient  capac- 
ity to  carry  this  water,  it  is  not  claimed  that  the  levee 
would  injure  plaintiff  by  reason  of  its  being  an  obstruction 
to  the  passage  of  water  ordinarily  and  usually  accumulating 
on  plaintiff's  land.  The  evidence  is  conflicting  on  the  point, 
but  we  think  it  sufficient  to  support  the  finding  that  defend- 
ant's said  ditch  had  not  capacity  to  carry  the  said  waters  at 
the  time  of  the  injury.  .  .  . 


360  WATER  RIGHTS  AND  IRRIGATION  LAW. 

'A  watercourse  is  defined  to  be  "  a  running  stream  of  water ; 
a  natural  stream,  including  rivers,  creeks,  runs,  and  rivulets." 
(Black's  Law  Dictionary,  title  "Watercourse.")  Further  '/ 
defining  the  term,  this  court  said:  "There  must  be  a  stream, 
usually  flowing  in  a  particular  direction,  though  it  need  not 
flow  continually.  It  may  sometimes  be  dry.  It  must  flow 
in  a  definite  channel,  having  a  bed  or  banks,  and  usually  dis- 
charge itself  into  some  other  stream  or  body  of  water.  It 
must  be  something  more  than  a  mere  surface  drainage  over 
the  entire  face  of  the  tract  of  land,  occasioned  by  unusual 
freshets  or  other  extraordinary  causes.  It  does  not  include 
the  water  flowing  in  the  hollows  or  ravines  in  land,  which  is 
mere  surface  water  from  rain  or  melting  snow  (i.  e.,  snow 
lying  and  melting  on  the  land),  and  is  discharged  through 
them  from  a  higher  to  a  lower  level,  but  which  at  other  times 
are  destitute  of  water.  Such  hollows  or  ravines  are  not,  in 
legal  contemplation,  watercourses."  (Los  Angeles  etc.  Assn. 
v.  Los  Angeles,  103  Cal.  466,  37  Pac.  375,  citing  text-books 
and  cases.)  The  evidence  does  not  bring  the  depression,  or 
swale,  in  question  within  this  definition.  .  .  . 

Our  conclusion  on  the  main  question  at  issue  is,  that  de- • 
fendant  had  no  right  to  obstruct  the  drainway  as  against  the 
flow  of  water  accumulating  on  plaintiff's  land  from  rainfall 
(melting  snow  need  not  be  mentioned,  as  no  snow  of  conse- 
quence ever  falls  in  that  part  of  the  San  Joaquin  Valley) 
without  first  providing  a  ditch,  or  canal,  of  sufficient  ca- 
pacity to  carry  such  water  as  the  said  waterway  was  accus- 
tomed to  carry  to  relieve  plaintiff's  lands.  But  defendant 
had  the  right  to  protect  his  land  from  the  overflow  waters 
of  Mormon  slough  by  a  levee.  As  a  new  trial  must  be  granted, 
a  question  may  arise  as  to  defendant's  liability  upon  evi- 
dence showing  that  concurrently  with  the  overflow  of  Mor- 
mon slough  there  was  a  heavy  rainfall,  which  latter  was  suffi- 
cient to  tax  the  capacity  of  said  waterway.  It  is  perhaps  \f 
enough  to  say  that  plaintiff  can  recover  damage  only  by 
showing  that  when  the  injury  occurred  there  was  flowing  in 
the  waterway  sufficient  water  to  fill  it,  which  had  accumulated 
on  his  land.  Defendant  may  meet  such  evidence  by  showing 
that  his  ditch  at  that  time  had  capacity  to  carry  all  the 


HlLDRETH  V.  MONTECITO  CEEEK  WATER  CO.  361 

water  the  drainway  would  carry.  To  prevent  any  restraining  I- 
order  as  to  the  future,  defendant  may  show  that  he  has  since 
(if  he  had  not  at  the  trial)  so  constructed  his  ditch  as  to 
carry  all  water  to  the  full  capacity  of  the  said  drainway. 
This  much  may  safely  be  said  to  result  from  the  principles 
already  decided  by  this  court,  to  which  reference  has  been 
made.  The  other  questions  raised  by  the  appeal  do  not  call 
for  discussion  in  view  of  what  has  already  been  said. 

The  judgment  and  order  should  be  reversed  and  a  new  trial 
ordered. 


Beneficiaries   Under   Public   Use — Private   Ownership   and 
Joint  Diversion. 

EDWARD     HlLDRETH,     Respondent,     v.     MONTECITO 

CREEK  WATER  COMPANY,  Appellant. 

(139  Cal.  22,  72  Pae.  395.) 

SHAW,  J. — These  appeals  arise  out  of  the  same  action. 
No.  1113  is  an  appeal  by  the  defendant  from  an  order  refus- 
ing to  dissolve  a  preliminary  injunction,  and  No.  1256  is  an 
appeal  by  the  defendant  from  the  final  judgment,  taken 
within  sixty  days  after  its  rendition,  and  presenting  as  the 
record  on  appeal  the  judgment-roll  and  a  bill  of  exceptions 
containing  the  evidence.  The  two  appeals  will  be  considered 
together. 

The  sufficiency  of  the  complaint  is  attacked  by  a  general 
demurrer  and  by  the  motion  to  dissolve  the  injunction.  The 
complaint  does  not  state  facts  sufficient  to  constitute  a  cause 
of  action.  The  purpose  of  the  action  is  shown  by  the  prayer, 
which  is,  that  the  defendant  be  enjoined  from  shutting  off 
from  the  plaintiff's  premises  the  water  supply  from  Hot 
Springs  creek  theretofore  used  thereon,  and  from  interfering 
with  the  flow  thereof  to,  and  the  use  thereof  on,  the  said 
premises.  The  plaintiff  in  his  complaint  does  not  claim  any  - 
ownership  of  or  title  to  the  water  of  the  creek  in  himself, 
or  as  appurtenant  to  the  land.  The  theory  upon  which  the 
complaint  is  drawn  is,  that  the  water  has  been  appropriated 


362  WATER  EIGHTS  AND  IRRIGATION  LAW. 

.  /-• 

and  dedicated  to  public  use ;  that  plaintiff,  as  a  beneficiary  of 
the  use,  has  been  receiving  a  due  proportion  of  the  water  for 
use  on  the  premises ;  that  defendant  is  in  charge  of  this  public 
use,  and  is  therefore  bound  to  continue  to  supply  the  water 
for  use  on  the  premises,  upon  payment  or  tender  of  the  rates 
established  therefor. 

It  must  be  admitted  that  a  person,  natural  or  corporate, 
cannot  be  said  to  be  in  charge  of  the  administration  of  a 
public  use  of  water,  unless  such  person  either  owns  or  con- 
trols some  water  which  is  the  subject  of  the  use.  And  if  one, 
claiming  to  be  a  beneficiary  of  the  use,  asks  the  court  to  pro- 
tect him  in  its  enjoyment,  against  a  person  claimed  to  be  in 
charge  of  the  use,  he  must  show  in  his  complaint  that  such 
person  has  the  ownership  or  control  of  water  which  is  the 
subject  of  the  use.  Otherwise,  there  can  be  no  cause  of  action. 
There  is  no  direct  decision  in  this  state  on  the  precise  ques- 
tion, but  it  was  recognized  as  one  of  the  fundamental  condi- 
tions of  such  liability  in  Price  v.  Riverside  etc.  Co.,  56  Cal. 
431.  In  that  case  the  court,  speaking  of  corporations  organ- 
ized for  the  distribution  of  water  for  public  use,  says  that 
every  such  corporation  "has  impressed  upon  it  a  public  trust, 
— the  duty  of  furnishing  water,  if  water  it  has,  to  all  those 
who  come  within  the  class"  for  whose  benefit  the  use  was 
created.  But  the  proposition  is  fundamental  and  needs  no 
authority  or  discussion  to  support  it.  It  is  evident  from  an 
examination  of  the  complaint  that  it  was  carefully  and  skill- 
fully drawn  so  as  to  avoid  the  statement  of  this  fact.  After 
alleging  the  ownership  by  the  plaintiff,  as  trustee,  of  three 
and  a  half  acres  of  land  situated  in  "The  Montecito,"  and 
known  as  the  "Lorenzana  Place,"  it  alleges  the  right  of  the 
plaintiff  and  the  liability  of  the  defendant  as  follows : 

"II.  That  the  defendant  is  a  corporation  organized  under 
the  laws  of  the  state  of  California,  and  is  the  owner  of  and 
in  the  possession,  management,  and'  control  of  a  system  of 
waterworks  and  water-pipes  constructed  and  laid  in  said 
Montecito  for  the  public  distribution  and  use  in  said  Montecito 
of  the  water  of  the  Hot  Springs  creek,  and  by  means  of  which 
waterworks  and  pipes  the  said  waters  of  Hot  Springs  creek 
have  been  appropriated  and  dedicated  to  public  use  as  afore- 
said. 


HlLDRETH  V.  MONTECITO  CREEK  WATER  Co.  363 

"III.  That  for  many  years  the  premises  of  plaintiff  afore- 
said have  been  supplied  with  water  from  said  .  .  .  creek  for 
(certain  uses),  by  said  defendant  by  means  of  its  waterworks 
and  pipes  aforesaid  ...  at  the  rate  of  one  dollar  per  month 
.  .  .;  that  plaintiff  has  paid  the  said  water  rates  as  demanded 
by  said  company  for  such  water  supply  for  said  premises,  to 
and  including  the  month  of  February,  1901;  .  .  .  and  that 
plaintiff  is  willing,  ready  and  able  to  pay  for  said  supply  to 
said  premises  as  the  same  may  be,  or  may  become  due,"  and 
desires  to  have  the  supply  continued. 

Allegations  follow  to  the  effect  that  in  February,  1901,  de- 
fendant gave  notice  to  plaintiff  of  its  intention  to  shut  off 
''from  said  premises  the  supply  of  water  heretofore  furnished 
by  defendant  as  aforesaid";  that  defendant  intends  to,  and 
will,  unless  restrained,  cease  to  supply  water  to  the  premises; 
that  plaintiff  has  no  other  means  of  supply,  and  will  suffer 
irreparable  damage. 

It  will  be  observed  that  while  these  paragraphs  explicitly 
aver  ownership  and  control  by  the  defendant  of  a  system  of 
waterworks,  they  do  not  state  that  the  defendant  owns,  con- 
trols, or  has  the  right  to  control  the  waters  of  Hot  Springs 
creek,  or  any  other  water.  And  although  it  is  averred  that 
by  means  of  these  waterworks  the  waters  of  the  creek  have 
been  appropriated  and  dedicated  to  public  use,  it  is  not  stated 
that  this  appropriation  or  dedication  was  made  by  the  defend- 
ant, nor  that  the  waters  still  remain  subject  to  such  use.  For 
all  that  appears  in  the  complaint  some  other  person  may  at 
all  times  have  been  the  owner  and  in  control  of  the  water,  and 
may  have  made  the  dedication  to  public  use,  using  defendant 's 
waterworks  as  the  means,  and  the  defendant  as  the  agent,  for 
the  distribution ;  or  the  water  may  have  ceased  to  flow,  or  the 
public  right  may  have  been  devested  and  the  water  converted 
to  private  use.  This  is  well  illustrated  by  the  subsequent 
proceedings  in  the  case,  the  court  finding  that  the  stockholders 
of  the  defendant  are  the  owners  and  entitled  to  the  use  of  all 
the  waters  of  the  creek,  except  that  portion  which  has  been 
theretofore  distributed  to  the  plaintiff's  premises;  and  if 
there  is  any  finding  at  all  as  to  plaintiff's  right,  it  is  that  he 
is  the  owner  and  entitled  to  the  use  of  this  excepted  portion 


364  WATER  EIGHTS  AND  IRRIGATION  LAW. 

under  a  right  by  appropriation  and  user,  which  right  has  been 
recognized  and  acquiesced  in  by  defendant. 

The  pleading  must  be  construed  most  strongly  against  thev 
pleader.  If  a  fact  necessary  to  his  cause  of  action  is  not 
alleged  it  must  be  taken  as  having  no  existence.  The  rule, 
sometimes  applied,  that  defects  in  a  pleading,  consisting  of 
facts  appearing  by  implication  only,  will  be  considered  as 
cured  by  the  verdict  of  findings  necessarily  implying  the  ex- 
istence of  such  facts,  has  no  application  here,  because,  as 
above  stated,  the  finding  is  contrary  to  the  inference  or  impli- 
cation. Therefore,  it  must  be  assumed  in  ruling  upon  the 
demurrer  that  some  other  person  or  persons  did  own  and  con- 
trol the  water,  and  that  the  defendant  was  only  in  the  manage- 
ment and  control  of  the  means  by  which  that  water  was  con- 
veyed to  the  plaintiff's  premises,  and  was  not  in  charge  of  the 
public  use  of  the  water.  For  these  reasons  the  demurrer 
should  have  been  sustained  and  the  preliminary  injunction 
dissolved. 

It  may  be  added,  in  view  of  a  possible  amendment  of  the 
complaint  in  the  lower  court,  that  there  is  no  direct  allegation 
in  the  complaint  that  at  the  time  the.  action  was  begun  there 
was  any  water  in  Hot  Springs  creek  which  could  be  made  the 
subject  of  public  use,  and  there  is  no  averment,  except  by  in- 
ference, that  there  ever  was  any  water  flowing  in  that  creek. 

As  there  may  be  another  trial  in  the  lower  court,  it  is  proper 
to  notice  some  other  questions  arising  upon  the  record  and 
likely  to  affect  the  final  decision  in  the  case.  It  is  difficult  to 
determine  on  what  theory  the  court  below  founded  its  con- 
clusion of  law  that  the  plaintiff  was  entitled  to  the  injunction. 
It  must  have  been  either  that  the  findings  showed  the  plain- 
tiff to  be  the  owner  of  a  portion  of  the  waters  of  the  creek  by 
appropriation  and  use  as  an  appurtenance  to  his  land,  of 
which  right  he  had  not  been  devested,  or  that  the  water  was 
devoted  to  public  use,  and  that  plaintiff  as  a  beneficiary  of 
the  use  was  entitled  to  have  the  water  supplied  to  him  so  long 
as  he  paid  the  rates.  If  the  former  theory  was  adopted,  then 
the  findings  are  entirely  outside  the  issues,  and  the  judgment 
cannot  stand.  (Schirmer  v.  Drexler,  134  Cal.  134,  66  Pac. 
180.)  If  it  was  the  latter,  then  the  conclusion  is  not  justified 


HlLDRETH  V.  MONTECITO  CREEK  WATER  Co.  365 

by  the  findings.  There  seems  to  be  a  claim,  though  not  defin- 
itely stated  either  in  the  findings  or  briefs,  that  at  times  when 
there  was  more  water  than  was  required  for  the  defendant's 
stockholders,  the  surplus  was  devoted  to  public  use  by  the  de- 
fendant, or  its  predecessor,  and  that  plaintiff  received  water 
from  this  surplus.  If  this  were  true,  the  decree  should  have 
limited  the  plaintiff's  right  to  the  use  only  of  this  surplus 
water.  But  the  findings  do  not  warrant  such  claim. 

The  court  below  seems  to  have  been  in  some  uncertainty 
as  to  the  nature  of  a  use  of  water  which  could  be  called  a 
public  use.  Section  1  of  article  14  of  the  constitution  de- 
clares that ' '  The  use  of  all  water  appropriated  for  sale,  rental, 
or  distribution  "  is  a  public  use.  So  also  does  the  act  of  March 
12,  1885  (Stats.  1885,  p.  95).  It  has  been  held  that  the  word 
"appropriation"  as  used  in  the  constitution  is  not  limited  to 
water  appropriated  under  the  provisions  of  the  Civil  Code, 
but  is  general  in  its  meaning,  and  includes  all  water,  how- 
ever acquired,  which  is  devoted  to  public  use.  (Merrill  v. 
Southside  etc.  Co.,  112  Cal.  426,  44  Pac.  720.)  But  it  cannot 
be  held  that  the  meaning  of  the  constitutional  provision  should 
be  so  broadened  as  to  cover  the  proposition  that  all  water 
which  is  distributed  among  a  number  of  persons  is,  from  that 
fact  alone,  to  be  considered  as  devoted  to  a  public  use.  Where 
a  number  of  persons  owning  land  are  each  entitled  to  take 
water  from  a  common  stream  or  source,  for  use  upon  their 
respective  tracts  of  land,  either  by  virtue  of  an  appropriation 
under  the  Civil  Code  or  by  prescription,  or  as  riparian  own- 
ers, the  water  right  of  each  is  individual  and  several,  and  must 
be  considered  as  private  property  and  not  the  subject  of  pub- 
lic use,  although  the  persons  so  owning  interests  in  the  stream 
are  very  numerous  and  their  lands  include  a  large  neighbor- 
hood. The  owners  of  such  water  rights  may  make  a  joint  di- 
version, and  may  carry  the  water  from  the  point  of  diversion 
in  a  common  conduit,  made  with  common  funds,  and  in  such 
a  case  in  the  absence  of  a  special  contract  to  the  contrary,  they 
will  be  the  owners  in  common  of  the  diversion  works  and  con- 
duits ;  but  the  respective  water  rights  will  remain  several  and 
will  remain  private  property.  If  the  persons  owning  such 
rights  see  fit  to  form  a  corporation  and  delegate  to  such  corpo- 


366  WATER  RIGHTS  AND  IRRIGATION  LAW. 

ration  the  work  of  making  the  diversion  and  distribution,  and 
of  constructing  and  keeping  in  repair  the  dams  and  conduits, 
reserving  to  themselves  their  rights  in  the  water,  as  was  done 
in  this  case,  they  do  not  thereby  dedicate  or  appropriate  to 
public  use  the  water  thus  reserved  and  used  by  them.  The 
corporation  becomes  merely  their  agent  for  the  purpose  of 
serving  their  several  interests,  so  far  as  they  may  be  served 
by  a  common  system  of  works,  the  water  remaining  the  sub- 
ject of  individual  ownership  and  private  use  as  before.  .  .  . 

In  the  case  of  a  public  use,  the  beneficiaries  do  not  possess 
rights  to  the  water  which  are,  in  the  ordinary  sense,  private 
property.  A  public  use  "must  be  for  the  general  public,  or 
some  portion  of  it,  and  not  a  use  by  or  for  particular  indi- 
viduals, or  for  the  benefit  of  certain  estates."  (McQmllen  v. 
Hatton,  42  Ohio  St.  202.)  "The  use  and  benefit  must  be  in 
common,  not  to  particular  individuals  or  estates."  .  .  .  The 
right  of  an  individual  to  a  public  use  of  water  is  in  the  nature 
of  a  public  right  possessed  by  reason  of  his  status  as  a  per- 
son of  the  class  for  whose  benefit  the  water  is  appropriated 
or  dedicated.  All  who  enter  the  class  may  demand  the  use  of 
the  water,  regardless  of  whether  they  have  previously  enjoyed 
it  or  not. 

With  these  principles  in  mind,  there  should  be  no  great  diffi- 
culty in  determining  whether  all  or  any  of  the  water  was 
devoted  to  a  public  use  of  which  plaintiff  was  a  beneficiary,  or 
was  the  subject  of  private  ownership. 

The  judgment  specifies  no  quantity  of  water  to  which  plain- 
tiff is  entitled.  His  right  would,  at  all  events,  be  confined 
to  his  actual  needs  for  use  on  the  premises.  But  it  is  very 
apparent  from  all  the  evidence  that  his  right,  if  any  he  has, 
may  be  still  further  curtailed  by  a  scarcity  of  water,  and  any 
decree  in  his  favor  should  define  his  share  in  such  an  event 
with  as  much  certainty  as  the  facts  will  allow.  .  .  . 

The  judgment  and  order  refusing  to  dissolve  the  injunction 
are  reversed,  with  costs,  and  the  cause  remanded  for  further 
proceedings  in  accordance  with  this  opinion. 


Ex  PAKTE  ELAM.  367 


Use  of  Artesian  Wells — Application  of  Statute  Restricting 

Such  Use. 

Ex  Parte  ELAM. 
(6  CaL  App.  233,  91  Pac.  811.) 

ALLEX,  P.  J. — This  is  an  application  for  a  writ  of  habeas 
corpus  presented  by  petitioner,  who  alleges  that  he  is  re- 
strained of  his  liberty  under  a  commitment  issued  upon  de- 
fault in  payment  of  a  fine  assessed  against  him  for  a  violation 
of  the  act  of  legislature  approved  March  6,  1907  (Stats.  1907, 
p.  122,  c.  101),  entitled  "An  act  to  prevent  the  waste  and 
flow  of  water  from  artesian  wells,  and  prescribing  penalties 
therefor,  and  defining  waste  and  artesian  wells." 

It  is  petitioner's  contention  that  this  statute  is  violative  of 
the  constitution  of  the  United  States  and  of  the  constitution  of 
the  state  of  California,  and  in  conflict  with  the  general  laws. 
Section  1  of  the  act  under  consideration  provides  that  an  arte- 
sian well  which  is  not  capped  or  provided  with  mechanical 
appliances  for  arresting  the  flow  of  water  therefrom  is  a  nui- 
sance, and  the  owner  of  the  land  upon  which  the  same  is 
situated  is  declared  guilty  of  maintaining  a  nuisance  if  he 
suffers  it  to  remain  so  uncapped  or  unprovided  with  mechani- 
cal appliances  for  arresting  the  flow,  and  any  person  main- 
taining such  nuisance  or  causing  or  permitting  water  to 
unnecessarily  flow  from  such  well,  or  to  go  to  waste,  is  guilty 
of  a  misdemeanor.  By  section  2  an  artesian  well  is  defined 
to  be  an  artificial  hole  made  in  the  ground  through  which 
water  naturally  flows  from  subterranean  sources  to  the  sur- 
face of  the  ground.  By  section  3  waste  is  defined  to  be  the 
causing,  suffering,  or  permitting  the  flow  from  an  artesian 
well  to  run  into  any  bay.  pond,  or  channel,  unless  used  there- 
after for  the  beneficial  purpose  of  irrigation  of  land  or  do- 
mestic use,  or  in  any  street,  road  or  highway,  or  upon  public 
land,  unless  it  be  used  for  the  irrigation  thereof,  or  for  do- 
mestic use  or  the  propagation  of  fish.  It  is  further  provided 
that  when  water  is  run  upon  land  for  irrigation  purposes,  if 
more  than  ten  per  cent  thereof  be  allowed  to  escape  therefrom, 


368  WATER  RIGHTS  AND  IRRIGATION  LAW. 

the  same  shall  constitute  waste.     Section  5  provides  a  penalty 
for  the  violation. of  any  of  the  provisions  of  the  act. 

The  first  point  made  by  petitioner — which  is  that  the  act 
is  violative  of  the  fourteenth  amendment  of  the  constitution 
of  the  United  States,  which  provides  that  no  state  shall  "de- 
prive any  person  of  life,  liberty,  or  property  without  due 
process  of  law,  nor  deny  to  any  person  within  its  jurisdiction 
the  equal  protection  of  the  law,"  and  of  article  1,  section  1, 
of  the  constitution  of  this  state,  which  provides  that  "all 
men  are  by  nature  free  and  independent,  and  have  certain 
inalienable  rights,  among  which  are  those  of  enjoying  and 
defending  life  and  liberty,  acquiring,  possessing  and  protect- 
ing property,"  and  of  section  13,  article  1,  which  provides 
that  no  person  shall  be  "deprived  of  life,  liberty  or  property 
without  due  process  of  law" — seems  to  have  been  met  and 
demonstrated  to  be  untenable  by  the  supreme  court  of  the 
United  States  in  the  case  of  Ohio  Oil  Co.  v.  Indiana,  177  U. 
S.  190,  20  Sup.  Ct.  576,  44  L.  ed.  729.  By  that  case  it  i 
established  that  water,  oil,  gas  and  all  fugitive  substances 
held  in  their  natural  subterranean  reservoirs  are  exceptions 
to  the  general  rule  establishing  absolute  ownership  in  the  pro- 
prietor of  the  surface  of  all  that  lies  underneath.  That  these 
minerals,  being  migratory  in  their  nature,  having  no  fixed  situs, 
are  a  part  of  the  soil  only  so  long  as  they  are  on  or  in  it,  but 
after  they  escape  and  go  to  other  lands  the  title  of  the  former 
owner  is  gone ;  that  it  follows  therefore  that  no  one  owner  of 
the  surface  of  the  earth  within  the  area  beneath  which  these 
minerals  move  can  exercise  his  right  to  extract  from  the  com- 
mon reservoir  in  which  the  supply  is  held  without  diminishing 
the  source  of  supply  as  to  which  all  other  owners  of  the  sur- 
face must  exercise  their  rights;  that,  in  consequence  of  the 
nature  of  the  deposits,  of  their  transmissibility,  of  their  in- 
terdependence, of  the  rights  of  all,  and  of  the  public  at  large, 
the  state  could  lawfully  exercise  the  power  to  regulate  the 
right  of  the  surface  owners  among  themselves  to  seek  to  ob- 
tain possession,  and  to  prevent  the  waste  of  the  products  in 
which  all  the  surface  owners  within  the  area  wherein  they 
were  deposited,  as  well  as  the  public,  had  an  interest.  "No 
devesting  of  private  property,  under  such  a  condition  can  be 


Ex  PABTE  ELAM.  369 

conceived,  because  the  public  are  the  owners,  and  the  enacting 
by  the  state  of  a  law  as  to  the  public  ownership  is  but  the 
discharge  of  the  governmental  trust  resting  in  the  state  as  to 
property  of  that  character."  This  water,  the  ownership  of 
which  until  actual  possession  is  acquired,  being  in  the  public, 
or  at  least  that  portion  of  the  public  who  may  own  the  sur- 
face of  the  soil  within  the  artesian  belt,  is  subject  to  a  reason- 
able use  only  by  those  interested  therein.  This  reasonable^ 
use  is  determined  in  Katz  v.  Walkinshaw,  141  Cal.  134,  99 
Am.  St.  Rep.  35,  70  Pac.  663,  74  Pac.  766,  64  L.  R.  A.  236, 
to  be  the  use  of  such  amount  of  the  subterranean  water  "as 
may  be  necessary  for  some  useful  purpose  in  connection  with 
the  land  from  which  it  is  taken.V  The  conditions  existing  in 
this  state  with  reference  to  the  necessity  for  the  conservation 
of  irrigating  waters  are  most  clearly  set  out  in  the  case  last 
cited,  and  the  reasons  for  the  rule  restricting  the  use  clearly 
shown.  Whenever  a  land  owner  exceeds  this  reasonable  use, 
he  is  appropriating  to  himself  that  which  belongs  to  others 
who  are  entitled  to  a  like  use,  and  to  that  extent  is  obstructing 
the  free  use  of  property  so  as  to  interfere  with  its  comforta- 
ble enjoyment,  and  which,  by  sections  3479  and  3480  of  the 
Civil  Code,  is  declared  to  be  a  public  nuisance.  Whatever 
right  one  has,  even  in  his  own,  is  subject  to  that  established 
principle  that  his  use  shall  not  be  injurious  to  the  rights  of 
others,  or  of  the  general  public.  This  act  therefore  relates  to 
waters,  the  right  to  the  use  of  which  is  common  to  a  large 
portion  of  the  community,  and  affects  the  general  public  right. 
Legislation  in  relation  thereto  affects  the  public  welfare,  and 
the  right  to  legislate  in  regard  to  its  use  and  conservation  is 
referable  to  the  police  power  of  the  state,  which  is  declared 
in  Ex  parte  Whitwell,  98  Cal.  78,  35  Am.  St.  Rep.  152,  32 
Pac.  870,  19  L.  R.  A.  727,  to  be  "the  power  to  make  laws  to 
secure  the  comfort,  convenience,  peace  and  health  of  the  com- 
munity." "The  police  power,  deriving  its  existence  from~ 
the  rule  that  the  safety  of  the  people  is  the  supreme  law,  jus- 
tifies legislation  upon  matters  pertaining  to  the  public  wel- 
fare, the  public  health  or  the  public  morals."  (Ex  parte 
Drexel,  147  Cal.  766,  82  Pac.  429,  2  L.  R.  A.,  N.  S.,  588.) 
It  is  settled  law  that  all  property  is  held  subject  to  the  exer- 
24 


370  ."WATER  RIGHTS  AND  IRRIGATION  LAW. 

else  of  police  power,  and  that  provisions  of  the  constitution 
declaring  that  property  shall  not  be  taken  without  due  pro- 
cess of  law  have  no  application  in  such  cases.  (Odd  Fellows' 
Cem.  Assn.  v.  San  Francisco,  140  Cal.  230,  73  Pac.  987.) 

It  is  further  contended  by  petitioner  that  the  act  violates 
section  21,  article  1,  of  the  state  constitution,  which  provides 
that ' '  no  special  privileges  or  immunities  shall  ever  be  granted 
which  may  not  be  altered,  revoked  or  repealed  by  the  legisla- 
ture, nor  shall  any  citizen  or  class  of  citizens  be  granted  privi- 
leges or  immunities  which,  upon  the  same  terms,  shall  not  be 
granted  to  all  citizens";  and  he  endeavors  to  demonstrate  this 
proposition  by  the  assumption  that  the  surface  owners  are  not 
prohibited  by  this  act  from  extracting  from  this  common 
source  of  supply  any  quantity  thereof  by  means  of  pumps, 
that  no  attempt  is  made  to  restrict  the  use  after  the  same  is 
so  pumped,  and  that  the  waste  of  such  water  so  pumped  is 
not  violative  of  the  act,  and  illustrates  the  claimed  distinction 
by  the  statement  that  certain  gun  clubs  within  the  arid  region 
are  pumping  large  quantities  of  this  subterranean  water,  by 
means  of  which  duck-ponds  are  filled  and  maintained,  while 
other  gun  clubs  whose  ponds  are  fed  by  artesian  wells  are 
restricted  in  the  use  of  the  flow  therefrom.  It  may  be  con- 
ceded that  the  courts  have  recognized  the  right  of  gun  clubs 
to  practically  create  a  monopoly  in  wild  game  over  large  areas 
of  land,  and  have  protected  them  in  so-called  private  pro- 
prietorship and  limited  dominion  over  such  portions  of  the 
common  property  of  the  people  of  the  state  as  they  may  in- 
duce to  stay  upon  such  preserves  by  feeding  them  and  main- 
taining ponds  therein.  It  may  also  be  conceded  that  an 
exclusive  right  to  hunt  upon  such  preserves  has  also  been 
held  to  be  a  species  of  property,  and  injunctions  have  been 
issued  to  prevent  interference  with  the  full  exercise  of  such 
rights.  (Kellogg  v.  King,  114  Cal.  378,  55  Am.  St.  Rep.  74, 
46  Pac.  166.)  But,  while  the  maintenance  of  such  duck- 
ponds  no  doubt  contributes  greatly  to  the  enjoyment  of  the 
owner  of  the  hunting  privileges,  it  will  scarcely  be  contended 
that  this  is  a  use  of  the  water  which  is  beneficial  to  the  land. 
Neither  does  it  follow  that  because  the  courts  have  recognized 
such  exclusive  hunting  privileges,  they  must  support  the  own- 


Ex  PABTE  ELAM.  371 

ers  thereof  in  an  encroachment  upon  another  more  necessary 
common  right  of  the  public — that  of  the  conservation  of  the 
subterranean  waters  of  the  state  for  domestic  use  and  pur- 
poses of  irrigation.  We  are  not  to  be  understood  in  thus 
meeting  the  reasons  of  the  petitioner's  argument  as  admitting 
that  there  is  anything  in  the  language  of  the  act  in  question 
that  would  affect  a  gun  club  any  more  than  an  individual, 
association  or  incorporation.  That  one  may  show  matters  de- 
hors  an  ordinance  which  is  referable  to  the  police  power  that 
such  ordinance  by  reason  of  particular  facts  and  circum- 
stances is  unreasonable  and  oppressive  as  to  him  is  determined 
in  Re  Smith,  143  Cal.  370,  77  Pac.  180.  No  reason  suggests 
itself  why  such  right  may  not  be  recognized  when  the  state 
has  sought  to  exercise  the  same  power ;  and,  while  courts  may 
to  a  degree  supervise  such  power,  "they  will  not  interfere 
except  where  the  case  be  plain  that  needless  oppression  is 
worked  and  constitutional  rights  invaded."  (In  re  Smith, 
supra. ) 

Nothing  appears  upon  the  face  of  the  act,  or  in  the  record 
on  this  application,  from  which  it  can  be  said  there  is  any 
discrimination  as  to  the  class  of  persons  who  may  violate  the 
provisions  of  the  law.  No  special  immunities  or  privileges 
are  granted  to  any  club,  clubs,  person  or  persons.  That  some 
clubs  may  maintain  their  ponds  by  pumping,  while  others, 
more  fortunate,  have  theirs  maintained  by  artesian  wells  or 
running  streams,  or  tide  water  from  the  ocean,  in  no  way  affects 
the  question.  As  well  might  it  be  said  that  legislative  action 
affecting  tide  lands  created  special  privileges  or  immunities 
because  the  duck-ponds  of  the  clubs  relying  upon  tide  waters 
might  be  affected  thereby. 

As  we  have  before  attempted  to  show,  no  surface  owner 
possesses  the  right  to  extract  the  subterranean  water,  in  ex- 
cess of  a  reasonable  and  beneficial  use  upon  the  land  from 
which  it  is  extracted.  Any  additional  extraction  is  not  in  the 
exercise  of  a  right,  if  by  such  exercise  the  rights  of  others  are 
injuriously  affected.  Nor  can  an  appropriator  take  more 
water  than  he  can  beneficially  use.  Hence  it  follows  that  no 
discrimination  is  made  between  parties  entitled  to  the  exercise 
of  a  common  right.  Under  the  act  in  question,  all  may  ex- 


372  WATER  RIGHTS  AND  IRRIGATION  LAW. 

ercise  their  full  legal  right  with  reference  to  this  water.  As 
to  the  right  to  use  any  portion  of  that  which  belongs  to  the 
public,  legislative  control  is  applicable,  and  if,  as  a  matter 
of  fact,  public  rights  are  abused  by  the  improper  extraction  of 
this  public  water  by  means  of  pumps,  it  is  presumable  that 
the  legislature  in  the  exercise  of  its  proper  functions  will  in 
due  time  arrest  such  waste.  The  game  of  the  state  belongs 
to  the  people  in  their  collective  capacity  in  a  more  general  way 
than  does  the  subterranean  water  within  an  artesian  belt,  yet 
no  one  will  question  the  right  of  the  state  to  restrict  the  man- 
ner in  which  fish  may  be  taken  from  the  water,  whereby  it  is 
made  a  public  offense  to  use  a  seine,  while  those  who  adopt 
the  hook  and  line  may  take  without  offense.  There  is  no 
special  privilege  or  immunity  granted  to  the  man  with  the 
hook  and  line.  The  right  to  take  at  all,  or  in  any  particular 
season,  either  of  game  or  any  other  thing  public  in  its  char- 
acter, comes  from  the  state  and  is  subject  to  its  regulation 
and  control,  and  it  is  for  the  legislature  to  say  what  reason- 
able restrictions  are  necessary  for  the  protection  of  this  public 
property.  (Ex  parte  Kenneke,  136  Cal.  527,  89  Am.  St.  Eep. 
177,  69  Pac.  261.) 

It  is  further  contended  that  this  act  is  violative  of  subdivi-t 
sion  33,  section  25,  article  4,  of  the  state  constitution,  which 
provides  that  "the  legislature  shall  not  pass  local  or  special 
laws  in  any  of  the  following  enumerated  cases,  that  is  to  say ; 
...  in  all  other  cases  where  a  general  law  can  be  made  ap- 
plicable"; and  also  violates  section  11,  article  1,  which  pro- 
vides that  ' '  all  laws  of  a  general  nature  shall  have  a  uniform 
operation. ' ' 

Assuming  all  that  the  petitioner  claims  for  the  act  as  to  its 
establishment  of  a  class,  nevertheless  ' '  the  true  practical  limi- 
tation of  the  legislative  power  to  classify  is  that  the  classifica- 
tion shall  be  based  upon  some  apparent  natural  reason,  some 
reason  suggested  by  necessity,  by  such  a  difference  in  the 
situation  and  circumstances  of  the  subjects  placed  in  differ- 
ent classes  as  suggests  the  necessity  or  propriety  of  different 
legislation  with  respect  to  them."  (Nichols  v.  Walter,  37 
Minn.  272,  33  N.  W.  802.)  "A  law  which  operates  only 
upon  a  class  of  individuals  is  none  the  less  a  general  law  if 


Ex  PABTE  ELAM.  373 

the  individuals  to  whom  it  is  applicable  constitute  a  class 
which  requires  legislation  peculiar  to  itself,  in  the  matter 
covered  by  the  general  law,  and  which  is  germane  to  the 
purpose  of  the  law."  (People  v.  Central  Pac.  E.  Co.,  105 
Cal.  576,  38  Pac.  905.)  It  is  obvious  that  different  legisla- 
tion is  required  peculiar  to  those  whose  lands  are  so  situ- 
ated with  reference  to  the  artesian  supply  that  a  natural 
flow  results  from  a  penetration  into  subterranean  reservoir. 
The  distinction  between  wells  having  a  natural  flow  and  those 
not  so  constituted  is  natural,  and  reasonably  indicates  the 
necessity  or  propriety  of  legislation  restricting  the  former 
class.  The  right  to  so  legislate,  when  the  reason  exists,  is 
determined  in  City  of  Pasadena  v.  Stimson,  91  Cal.  251,  27 
Pac.  604 ,  People  v.  Central  Pac.  R.  Co.,  105  Cal.  576,  38  Pac. 
905,  and  People  v.  Muttender,  132  Cal.  221,  64  Pac.  299.  This 
act  operates  uniformly  upon  every  one  owning  lands-  upon 
which  is  located  an  artesian  well  of  the  kind  and  character 
specified  in  the  act.  "Section  11,  article  1,  of  the  state  con- 
stitution, requiring  all  laws  of  a  general  nature  to  have  a 
uniform  operation,  is  satisfied  when  the  law  operates  uniformly 
upon  all  persons  standing  in  the  same  category,  and  upon 
rights  and  things  standing  in  the  same  relation."  (Wigmore 
v.  Buell,  122  Cal.  144,  54  Pac.  600.) 

It  is  further  contended  that  a  discrimination  exists  because 
of  the  provision  which  permits  the  maintenance  of  ponds  for 
the  propagation  of  fish,  as  distinguished  from  the  maintenance 
of  ponds  for  other  purposes.  The  propagation  of  fish  has 
always  been  recognized  as  a  legitimate  pursuit  and  as  an  ef- 
fort to  increase  the  food  supply  of  the  world,  and  the  use  of 
water  therefor  a  beneficial  use,  which,  like  the  use  for  irri- 
gation or  domestic  purposes,  is  declared  by  the  act  to  be  the 
highest  use  to  which  this  natural  element  may  be  applied. 
The  legislature  has  the  right  to  determine  what  uses  are  su- 
perior in  kind  and  to  protect  the  same,  and  it  is  within  its 
province  to  determine  that  certain  uses  of  this  public  property 
are  of  a  higher  character  and  superior  in  right  to  other  uses. 
This  right  is  subject  only  to  the  constitutional  limitations 
against  discriminations.  Having  so  determined,  and  no  just 
criticism  being  applicable  thereto,  the  value  of  such  uses  must 


374  WATER  RIGHTS  AND  IRRIGATION  LAW. 

be  held  to  be  established.  We  are  not  called  upon  in  this 
case  to  determine  the  legislative  right  to  regulate  or  protect 
the  extraction  of  this  subterranean  water  for  transportation 
or  sale  by  those  owners  of  the  surface  whereon  the  use  of 
water  is  not  required  for  those  higher  uses,  nor  of  prescriptive 
rights  asserted  or  claimed  in  such  instances,  but  simply  to 
hold  that  for  the  uses  which  have  been  determined  subordi- 
nate the  great  subterranean  water  supply  may  not  be  applied 
to  the  detriment  of  the  higher  uses,  and  that  legislation  di- 
rected to  the  conservation  of  such  water,  as  in  this  act,  is  not 
prohibited  by  any  constitutional  provision.  "Every  possible 
presumption  is  in  favor  of  the  validity  of  a  statute,  and  this 
continues  until  the  contrary  is  shown  beyond  a  rational  doubt. 
One  branch  of  the  government  cannot  encroach  on  the  domain 
of  another  without  danger.  The  safety  of  our  institutions  de- 
pends in  no  small  degree  on  a  strict  observance  of  this  salu- 
tary rule."  (In  re  Spencer,  149  Cal.  400,  117  Am.  St.  Rep. 
137,  86  Pac.  896;  Sinking  Fund  Cases,  99  U.  S.  718,  25  L. 
ed.  496.) 
Writ  denied. 


3  3-  t~t> 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

405  Hilgard  Avenue,  Los  Angeles,  CA  90024-1388 

Return  this  material  to  the  library 

from  which  It  was  borrowed. 


QUARTER  LOAN, 


24131 


